Payne was at his sister Wilma’s house with his girlfriend, Sandra
Walker, and Wilma. Payne left the house with a double-barreled shotgun.
Later that evening two customers saw Payne at West Point Grocery,
which was owned by Braxton Brown. Payne had robbed the store,
kidnapped Brown, and taken him at gunpoint to his sister’s house.
Wilma was still there with Sandra. Sandra testified Brown appeared
very nervous and scared, and Payne had a gun and ordered Brown to give
Wilma money. Wilma asked Payne to leave Brown with her or take him
back to his store and said “maybe he would forget about this.” Payne
rejected the suggestion, stating, “No, I am going to do this.”

Payne
forced Brown iinto the car and drove to a nearby bride where he shot
him twice in the face with a shotgun and dumped him into the Crooked
Creek. Around midnight, Payne purchased a bus ticket to Florida.
Following a call from Alabama authorities, a Miami police detective
met Payne’s bus when it arrived in Miami.

Items found on Payne
included Brown’s handgun; a jeweler’s invoice made out to West Point
Grocery; a vehicle registration in Brown’s name; three cartons of
Marlboro cigarettes; three bank deposit bags containing numerous
checks written to West Point Grocery, credit card receipts, rings, and
food stamps; bank receipts in Brown’s name; and a total of $1,085.84.
Brown’s son identified many items as coming from West Point Grocery.
Forensic testing matched human tissue recovered from Payne’s arm sling
to Brown’s blood type.

ATMORE - Convicted murderer Max Landon Payne on
Thursday evening became the sixth Alabama prison inmate to be executed
this year. Payne, who had been on Death Row for 15 years, died by
lethal injection in Holman Correctional Facility's execution chamber
at 6:25 p.m. He was sentenced to death in 1994 for the 1992 robbing,
kidnapping and killing of Cullman County store owner Braxton Brown.
Brown was killed by two shotgun blasts to the face.

Payne, 38, did not make any last attempts to stop
his execution. Asked for any last words as he faced the lethal
injections, Payne said to tell his family "I love'em," and signed that
message to the people he chose to witness his execution.

Donald Blocker of Kairos Prison Ministry knelt
beside Payne's two sisters and two friends in the execution viewing
room before the curtains were opened. He told them Payne wouldn't
suffer and was ready for what was to come. No witnesses were present
on behalf of the victim.

Douglas Price, one of Payne's friends who witnessed
his death, said in a statement afterward that Payne paid the ultimate
price for his crime. He said Payne had wanted to be an organ donor but
that was not allowed. Corrections spokesman Brian Corbett said the
denial was based on a medical issue. Payne spent part of the time
leading to his death visiting with relatives and friends.

Corbett said Payne had a last meal consisting of a
turkey sandwich, potato salad and cake. He also divided his personal
possessions among a sister, Wilma Easterling; a friend, Claudia
Wheatley; and two fellow Death Row inmates, Richard Flowers and Calvin
Stallworth. Among his final visitors were Blocker and a priest, the
Rev. Johnnie Savoie.

No other inmates are scheduled for execution now,
but the attorney general's office has asked the Alabama Supreme Court
to set execution dates for convicted murderers Thomas Arthur and
Robert Bryant Melson.

Arthur, 67, of Jefferson County has been on Death
Row since 1983. He has been scheduled for execution more than once,
and his most recent date was postponed so a judge could conduct a
hearing on his claim that another inmate killed Troy Wicker Jr. in
1982. After the hearing, Jefferson County Circuit Judge Teresa Pulliam
rejected Arthur's claim, saying he and the inmate were trying to
defraud the court.

Melson, 38, has been on Death Row since May 17,
1996. He was convicted of killing three people during an April 1994
robbery at a Popeye's Chicken & Biscuits restaurant in Gadsden.

Payne, 38, died at 6:25 p.m. as his two sisters and
other relatives wept quietly in the witness viewing room. Payne made a
hand sign that means "I love you" to his relatives before losing
consciousness. Asked if he had any last words, Payne said, "I just
want to tell my family I love them."

The heavyset, balding Payne, strapped to a gurney
in the execution chamber, made his last statement after warden Grantt
Culliver read the execution order issued by the Alabama Supreme Court.
Once the lethal injection began, Payne gestured to family members and
spoke quietly with prison chaplain Chris Summers, who was standing a
few feet away. At one point Summers grabbed Payne's hand and patted
him on the knee. Payne closed his eyes, pinched his lips and seemed to
take a deep breath. Then he was still. His sisters, Wilma Easterling
and Evelyn Schrimser, cried quietly as they watched from the witness
room. They did not talk to news reporters.

One witness, Douglas Price, who prison officials
described as a friend of Payne's, released a handwritten statement
through prisons spokesman Brian Corbett. In it, Price complained that
Payne was not able to donate his organs after his death. "It is like
he said today at our last visit, 'Do you think people would care where
a heart came from if their child is dying?'" Price said in the
statement. Corbett said he's not sure why Payne was unable to donate
organs. "It's not a prison issue, it's a medical issue," Corbett said.

No relatives of the victim attended the execution.
Payne had been held since Tuesday in a cell just a short walk from the
execution chamber.

He was convicted of kidnapping the 58-year-old
Brown from his store at gunpoint on March 23, 1992, and taking Brown
to a bridge over Crooked Creek in a rural area near West Point. Brown
was shot there and his body dumped in the waters below. Assistant
Alabama Attorney General Clay Crenshaw said Thursday that no motions
to stop the execution had been filed.

An attorney for Payne, Bruce Nestor of Minneapolis,
said earlier that Payne had exhausted his appeals and he did not plan
to file any last-minute motions to halt the proceedings.

Payne spent Thursday visiting with about a dozen
friends, family members and religious advisers in a visitation yard at
the prison. For his last meal about 3:30 p.m., Payne had a turkey
sandwich with tomatoes and mayonnaise, potato salad and cake, Corbett
said.

The condemned inmate gave away his few possessions.
He left a rosary necklace, a watch, a white cap and some photos to
Easterling; two Bibles, some photos and drawings of family members to
a friend, Claudia Wheatley; and his television to death row inmate
Calvin Stallworth.

Gov. Bob Riley's press secretary, Todd Stacy, said
the governor received letters asking him to commute Payne's death
sentence. Stacy said the governor responded to the letters, but took
no action to stop the execution. In his earlier appeals, Payne claimed
another man shot Brown and asserted that the court-appointed attorney
at his trial was ineffective. His pleadings were rejected by state and
federal courts.

Len Brooks, who was the Cullman County district
attorney at the time, called Brown's killing "a cold, callous,
senseless crime." Brooks said the kidnapping and shooting of the store
owner shocked the close-knit, rural West Point community in northwest
Cullman County.

Payne's lethal injection brings Alabama's 2009
execution total to six, the most in a single year in the state since
the U.S. Supreme Court allowed capital punishment to resume in the
1970s. Until now, the most in a single year was four, in 2005, 2000
and 1989.

Convicted murderer Max Payne
executed

By Patrick McCreless - Cullman Times

October 8, 2009

The small, white room was dark except for a soft
red light glowing in the corner. Four of Max Landon Payne's closest
family and friends sat in a row in front of a window shielded by a
white curtain. At 6:01 p.m., a corrections officer pulled back the
curtain to reveal Payne, strapped to a table.

Payne caught the eye of his friend Douglas Price
and the two immediately flashed each other the Hook 'em Horns hand
sign, which, according to prison minister Donald Blocker, meant 'I
love you.' "I just want to tell my family I love them," Payne said.
After speaking his final words, a priest took Payne's left hand and
made a silent prayer as the injections began.

With a calm, somber look on his face, Payne closed
his eyes, never to reopen them. Payne, 38, was pronounced dead by
lethal injection at 6:25 p.m. Thursday at the Holman Correctional
Facility in Atmore.

He had been on death row since 1994, when he was
convicted of the kidnapping and murdering of West Point businessman
Braxton Brown. In 1992, Payne kidnapped Brown from his place of
business and drove him to several places before he took him to a
bridge on Crooked Creek, where he shot him in the face with a shotgun.
None of Brown's family members attended the execution.

In a written statement, Price said Payne had paid
the ultimate sacrifice for the crime he committed. Price added that
Payne had wanted to donate his organs but was not allowed to do so.
Alabama Department of Corrections Spokesman Brian Corbett said the
denial was related to a medical issue.

Payne spent his final hours leading up to the
execution watching television and visiting with family and friends.
His final meal consisted of a turkey sandwich with tomatoes, potato
salad and cake. In a written will, Payne left his most personal
possessions to his sister Wilma Easterling and friend Claudia Wheatly,
which included a Rosary necklace, several letters and photographs, two
Bibles and a drawing of his family. He also left some possessions to
fellow inmates Richard Flowers and Calvin Stallworth, including a box
of tobacco, seven matches, stamps, food and a television.

Payne's death marked the sixth execution performed
in Alabama this year — the most performed in the state over a one-year
time span since 1983.

Max Landon Payne

ProDeathPenalty.com

Max Landon Payne was sentenced to death for the
murder of Braxton Brown, the owner of West Point Grocery in Cullman
County. Braxton was killed by two shotgun blasts to his face.

On March 23, 1992, the evening Payne murdered
Braxtom, Payne was at his sister Wilma’s house with his girlfriend,
Sandra Walker, and Wilma. Payne left the house with a double-barreled
shotgun. Payne said he was taking the shotgun in case “somebody fucks
with me.” Around 8:25 or 8:30 p.m., two customers saw Payne at West
Point Grocery, which Braxton owned. Around 8:30 p.m., an alarm company
operator received a “hold-up alarm” from West Point Grocery and called
the sheriff’s department. The responding deputy discovered the store
door open and saw Marlboro packs scattered on the floor, but found no
one there.

Payne had robbed the store, kidnapped Braxton, and
taken Braxton at gunpoint to his sister’s house. Wilma was still there
with Sandra. Sandra testified Braxton appeared very nervous and scared,
and Payne had a gun, stood right next to Braxton, and had an arm sling.
Payne ordered Braxton to give Wilma money. Braxton laid $20 on a table.
Sandra overheard Wilma begging Payne “don’t do this” several times.
Wilma asked Payne to leave Braxton with her or take him back to his
store and said “maybe he would forget about this.” Braxton nodded
nervously.

Payne rejected his sister’s suggestion, stating,
“No, I am going to do this.” Payne forced Braxton to leave the house
with him. Around 9:15 p.m., Payne went to a friend’s house and asked
to use the telephone. Payne called someone and asked for bullets for a
.22 rifle. Payne also asked the friend if he had any bullets. During
this time, Payne’s other sister Alma went to West Point Grocery and
informed police her brother had been seen with Braxton and described
the car Payne was driving. Around 10:00 p.m., a police investigator
taking pictures at West Point Grocery received a call that gunshots
had been heard. He attempted to locate the origin of the shots but
failed. When the investigator returned to West Point Grocery, he
received a call that Braxton had been seen with Payne.

Following the report of gunshots, an investigator
arrived at Wilma’s house and found the car Payne had used that evening.
Inside the car were two spent and several unspent shotgun shells.
Around midnight, Payne purchased a bus ticket to Florida. The ticket
agent noticed Payne wore torn blue jeans with blood stains and had
cuts on his face. On the morning of March 24, 1992, a volunteer
fireman found a partial dental plate on a bridge over Crooked Creek
and noticed dark red stains on the bridge and railing. The search team
discovered Braxton’s body in the creek.

Most of Braxton’s face was gone due to two shotgun
blasts to the face. He had two large holes in his face: one in his
forehead and one in his mouth. An autopsy later retrieved 466 shotgun
pellets from Braxton’s skull. A forensic examiner testified Braxton
was shot with a shotgun from a distance of one to one-and-a-half feet
away. On March 25, 1992, following a call from Alabama authorities, a
Miami police detective met Payne’s bus when it arrived in Miami.

Items found on Payne included Braxton’s handgun; a
jeweler’s invoice made out to West Point Grocery; a vehicle
registration in Braxton’s name; three cartons of Marlboro cigarettes;
three bank deposit bags containing numerous checks written to West
Point Grocery, credit card receipts, rings, and food stamps; bank
receipts in Braxton’s name; and a total of $1,085.84. Braxton’s son
identified many items as coming from West Point Grocery. Forensic
testing matched human tissue recovered from Payne’s arm sling to
Braxton’s blood type.

The counts are: (1) intentional murder committed
during an abduction with the intent to accomplish or aid the
commission of robbery or flight therefrom; (2) intentional murder
during an abduction with the intent to inflict serious physical injury;
and (3) intentional murder during a robbery in the first degree. A
person commits robbery in the first degree when he, in the course of
committing a theft, (1) uses force with intent to overcome physical
resistance or threatens the imminent use of force with intent to
compel acquiescence to the taking of or escaping with the property;
and (2) is armed with a deadly weapon or dangerous instrument or
causes serious physical injury to another. Payne was indicted for
three counts of capital murder arising from Braxton’s death. An
Alabama jury unanimously convicted Payne on all counts and recommended
a death sentence by an 11-1 vote. The state trial judge sentenced
Payne to death.

Max Landon Payne was convicted of three counts of
capital murder. Ala.Code 1975, § 13A-5-40. Count one charged
intentional murder committed during an abduction with the intent to
accomplish or aid the commission of robbery or flight therefrom (§
13A-5-40(a)(1)); count two charged intentional murder during an
abduction with the intent to inflict serious physical injury (§
13A-5-40(a)(1)); and count three charged intentional murder during a
robbery in the first degree (§ 13A-5-40(a)(2)). A sentencing hearing
was held before the jury, in accordance with §§ 13A-5-45 and -46, and
the jury recommended a sentence of death by a vote of 11-1. Thereafter,
the trial court held another sentencing hearing in accordance with §§
13A-5-47 through -52, and, after weighing the aggravating and
mitigating circumstances and considering the jury's recommendation,
sentenced Payne to death. Payne appeals his conviction, raising five
issues. He does not question the sufficiency of the evidence to
support his convictions. Nevertheless, after reviewing the record, we
find that the evidence was sufficient for the jury to exclude every
reasonable hypothesis except that of guilt and to find him guilty of
the offenses charged in the indictments beyond a reasonable doubt. In
fact, the evidence of guilt was strong and convincing.

On March 23, 1992, Braxton Brown, the owner of West
Point Grocery in Cullman, Alabama, was robbed, abducted, and
subsequently shot two times in the face with a shotgun. He died as a
result of the shotgun wounds and his body was found the following day
in Crooked Creek.

The state's evidence tended to show that Payne was
at his sister's house, where he was living at the time, in the company
of his girlfriend and two other people in the early evening hours of
March 23, 1992. Sandra Walker, Payne's girlfriend, testified that she
did not know the two individuals with Payne. The three left at around
6:00 p.m. Payne returned to the house about 10 minutes later and went
to the closet and removed his double-barreled shotgun. Wilma Faye
Easterling, Payne's sister, asked Payne why he needed his shotgun.
Payne replied “In case somebody fucks with me.” Walker identified
Payne's double-barreled shotgun in court.

At approximately 8:33 p.m. on March 23, 1992, Judy
Gail Byrum received an alarm from West Point Grocery. At 8:36 p.m.
sheriff's deputy Jason Allen received a call that there had been a
holdup at West Point Grocery. Allen notified Toby Welch, a dispatcher,
who subsequently asked Gordon Nichols to respond to the scene. Nichols,
a deputy sheriff with the Cullman County Sheriff's Department,
responded to the call and arrived at West Point Grocery at 8:48 p.m.
Nichols discovered the door of the store open and that some of the
lights were off in the store. The lights outside the store were also
off. Nichols also observed several packs of Marlboro cigarettes lying
on the floor in front of the counter. Nichols did not find anyone in
the store. He notified the dispatcher and secured the area. Bobby
Watson, a sergeant with the Cullman County Sheriff's Department,
arrived on the scene at approximately 9:08 p.m. He subsequently
requested that an investigator be sent to the scene. Payne had been
seen at West Point Grocery by two customers, Christy Sue Godsey and
Becky Noone, around 8:25 or 8:30 p.m. Sometime after this and before
9:00 p.m. that evening, Payne arrived at his sister Faye Easterling's
house. The victim, Braxton Brown, was with him. Sandra Walker, Payne's
girlfriend, was present. At trial, Walker identified a photograph of
Brown as the man with Payne that evening. Walker testified that when
the two men entered the house, Easterling asked Payne what was going
on. Walker testified that Brown had three bank deposit bags and two
cartons of Marlboro cigarettes with him. Walker identified the three
bank deposit bags at trial. Brown told Easterling that he heard that
she was pregnant and also that he heard that she needed “that,”
referring to money. Easterling told Brown that she did not want the
money. Brown asked her again to take the money and Easterling said
that she did not want the money.

Walker testified that Brown appeared very nervous
and scared. Payne instructed Brown to give Easterling the money he
owed her. Brown took out four $5.00 bills and laid them on the kitchen
table. Walker testified that Easterling and Payne then went to the
bathroom, which is located next to the kitchen. Walker testified that
the door to the bathroom was open and that she overheard Easterling
saying “don't do this” several times.

Walker further testified that she, Payne, and
Payne's two sisters had been involved in an automobile accident the
week before and that Payne was wearing a sling on his left shoulder as
a result of an injury he received. Walker testified that Payne had a
gun in his right hand, inside the sling, on the night he arrived at
the house with Brown. Walker identified a handgun at trial as the one
that Payne carried that night. Walker testified that Easterling asked
Payne to give the gun back to Brown. Payne refused. Then Payne gave
Brown the clip out of the gun. Easterling asked Payne to leave Brown
with her or to take him back to his store and said that “maybe he
would forget about this.” Walker testified that at this point, Brown
nodded in the affirmative. Payne responded “No, I am going to do this.”
Then Payne left with Brown.

When they were leaving the house, Payne and Brown
met Ricky Smith and his wife Evelyn. Ricky Smith testified that he
arrived at Easterling's house around 8:55 or 9:00 p.m. that evening.
This was the last time that Brown was seen alive. Smith testified that
when he walked into Easterling's house, she was crying. Easterling was
speaking to Smith's wife and he overheard her say that Payne had
robbed and kidnapped Brown.

At approximately 9:15 p.m., Payne arrived at George
Cleghorn's house. Payne asked Cleghorn if he could use his telephone.
Payne called someone on the telephone and asked them if they had any
bullets for a .22 rifle. Payne also asked Cleghorn if he had any
bullets. Cleghorn identified Payne's clothing at trial as the clothing
that he was wearing the night of this incident.

Shortly after 9:08 p.m., Payne's sister Alma
arrived at the West Point Grocery and informed Sergeant Watson that
Payne was traveling in a blue Ford Maverick automobile with one
missing headlight. Based on the information that Watson received from
Payne's sister, Watson ordered the dispatcher to issue an all-points
bulletin to be on the lookout for the automobile and to advise all
officers that Payne was in the company of Braxton Brown.

At 10:00 p.m. that evening,
Investigator Ted Manus was at the West Point Grocery taking pictures
of the scene when he received a call that gunshots had been heard. He
went to see if he could locate the origin of the shots but could not.
Manus returned to the store and secured several packages of cigarettes
from the store that were found on the floor. He then received a call
that Brown had been seen with Payne. Manus also received information
that Brown and Payne were seen together at a residence near Bethel.
Manus left the store and proceeded to the residence.

Mitchell Love, an investigator with the Cullman
County Sheriff's Department, arrived at Easterling's residence at
approximately 10:15 p.m. Love testified that he located a blue Ford
Maverick automobile outside this residence. Love had previously
received word to be on the lookout for an automobile matching this
description. Love notified the dispatcher that he had located the
vehicle and asked for assistance on the scene. Several other officers
arrived shortly thereafter. The officers looked inside the vehicle and
observed several beer cans, some live and expended shotgun shells and
an arm sling.

Phillip Lambert, the chief investigator for the
sheriff's department, arrived at Easterling's residence. He also
looked inside the Ford Maverick and observed two spent shotgun shells,
several unspent shotgun shells, and an arm sling. He later called for
a tow truck to have the automobile towed to the sheriff's department.

At 12:05 a.m., on March 24, 1992, Rebecca
Herbstreth, a ticket agent for Greyhound Bus Lines in Birmingham,
Alabama, sold someone identifying himself as James Beavers a bus
ticket to Key West, Florida. At trial, Herbstreth identified Payne as
the individual who claimed to be James Beavers. Herbstreth testified
that she noticed that Payne was wearing a white T-shirt and torn blue
jeans that had blood stains on them. Herbstreth further testified that
Payne had cuts on his face. Payne gave Herbstreth a gold chain when he
bought his ticket. Herbstreth identified this gold chain at trial. The
chain was subsequently identified by the victim's son as one offered
for sale from West Point Grocery. Payne handed out cigarettes to
passengers while waiting for his bus and also helped one individual
pay for a bus ticket. Herbstreth testified that Payne had tied a blue
money bag to his waist that contained a lot of money. Herbstreth
stated that Payne told her he received this money from the sale of his
automobile.

At approximately 7:50 a.m. on the morning of March
24, 1992, a man walked into the Greyhound Bus Station in Birmingham
with a wallet that he had found about a block away. Herbstreth was
still working. She called the Birmingham police. Herbstreth looked in
the wallet and found Braxton Brown's Social Security card inside.
Herbstreth identified the wallet at trial. Inside were nine different
credit cards, all of which had Braxton Brown's name on them.

On March 24, 1992, Officer Mitchell Love went to
Payne's mother's residence. Payne's sister, Alma Lee, was present at
the residence. Lee gave Love a double-barreled shotgun that she had in
the trunk of her automobile. Love identified the shotgun that he
received from Lee at trial. It is the same shotgun that Walker
identified as Payne's shotgun.

Also on March 24, 1992, Deputy Sheriff Sidney
Yarbrough searched the blue Ford Maverick automobile that had been
towed from Easterling's house the night before. Inside he found two
spent shotgun shells and four shotgun shells that had not been fired.
He identified these shells at trial. Yarbrough also found a blue arm
sling in the automobile, which he identified at trial.

Volunteer fireman John Hardin, a resident of West
Point, searched for Braxton Brown on the morning of March 24. He went
to a bridge on Crooked Creek near West Point. He noticed a dark
colored substance on the bridge and on the railing of the bridge. He
discovered a partial dental plate on the bridge. He contacted the
sheriff's department.

Phillip Lambert, Ted Manus, and Anthony Dotson
arrived at the bridge. Lambert observed red stains on the bridge and
the partial plate. Lambert also observed a broken set of eyeglasses
and a lens on the bridge. These glasses were subsequently identified
by the victim's son as belonging to his father. Manus discovered a
body in the creek. When the body was brought up from the creek, Manus
observed that most of the face was missing. Dotson, who was serving as
the coroner on this date, was present when the body was removed from
the water. Dotson testified that the victim had suffered two gunshot
wounds to the face. There were two large holes in the face-one in the
victim's forehead and one in his mouth. Dotson knew Brown and
identified the victim as Braxton Brown.

Lambert testified that he believed that the holes
in the victim's face were the result of a shotgun blast. The victim's
body was taken to Moss Funeral Home and later released to Peggy
Lindsey of the Alabama Department of Forensic Sciences for an autopsy.

On March 25, 1992, a detective from the Metro Dade
Police Department in Miami, Florida, received a telephone call that
Payne was due to arrive at the Greyhound bus station in Miami. The
Cullman authorities provided Detective John Robert Butchko with
Payne's description and informed him that Payne was involved in a
robbery-murder in Cullman, Alabama. Butchko also received information
that Payne would be carrying a green duffel bag and was probably armed.
Butchko was further informed that Payne was likely traveling under the
name of James Beavers.

Based on this information, Butchko arrived at the
Greyhound bus station and awaited the arrival of Payne's bus. A
security guard held everyone on the bus so that Butchko could identify
the people exiting. Butchko approached Payne, who was carrying a green
duffel bag, after he exited the bus. Payne identified himself as James
Beavers. Butchko was about to pat Payne down for weapons when Payne
informed him that he had a .25 caliber gun in his right rear pocket.
Butchko identified a Sterling .25 caliber automatic pistol at trial as
the gun that he removed from Payne's pocket. This is the same gun that
Sandra Walker previously identified as the gun she saw Payne with at
Easterling's house when he was with the victim. This gun was also
identified at trial by the victim's son as having belonged to his
father. Butchko also removed Payne's wallet from his pocket. The
identification in the wallet was that of Max Landon Payne. Butchko
identified the wallet and its contents at trial.

Payne was subsequently transported to the homicide
division of the Metro Dade County Police. Butchko saw Payne again in
an investigation room at the station. Butchko asked Payne if he could
search his green duffel bag. Payne subsequently signed a consent form
allowing Butchko to search the duffel bag. The consent form was
admitted into evidence and identified at trial. Upon searching the
duffel bag Butchko found many items, including the following that he
identified at trial: a jeweler's invoice made out to West Point
Grocery; a Greyhound bus ticket in the name of James Beavers; a State
of Alabama vehicle registration in the name of Braxton Brown; three
cartons of Marlboro cigarettes; three First Alabama Bank deposit bags
containing numerous checks written to West Point Grocery, credit card
receipts, rings, and food stamps; bank receipts in Braxton Brown's
name; $196.54 found in Payne's wallet; and, $889.30 found in the bank
bags. Many of these items were subsequently identified by the victim's
son as coming from West Point Grocery.

Further testimony was heard from Peggie Lindsey, an
investigator with the Alabama Department of Forensic Sciences. Lindsey
transported Brown's body to Birmingham for an autopsy. Dr. Joseph
Embry performed the autopsy and Lindsey assisted. Lindsey testified
that Embry removed around 466 shotgun pellets from the victim's skull.
Lindsey also testified that Dr. Embry removed a blood sample from the
victim, which she later delivered to a serologist in Huntsville.
Lindsey testified that the victim died from the gunshot wounds to his
head.

Brent Wheeler, with the Alabama Department of
Forensic Sciences in Huntsville, examined the shotgun pellets, the
shotgun and the two spent shotgun shells found in Payne's automobile.
He also examined the pellets that were taken from the victim's skull.
Wheeler concluded that the pellets removed from the victim's head
represented the pellets of two shotgun shells, maybe three. He also
testified that the two spent shotgun shells that were found in Payne's
automobile were the same type of shells that had been used to shoot
the victim. Wheeler further testified that the two expended shells
found in the automobile had been fired from Payne's shotgun that had
been taken from the trunk of his sister's automobile. Wheeler stated
that the pellets taken from the victim's skull could have come from
the two empty shotgun shells found in the automobile. Wheeler
testified that it was his opinion that the victim was shot from a
distance of one to one and one-half feet.

Morris Glen Brown, a serologist for
the Alabama Department of Forensic Sciences, tested a blood sample
taken from the victim. Brown testified that the victim's blood was
“type-ABO, type was type O, Erythrocytic D-type 2-1 PGM, type 1, DAP,
type B.” Brown also tested a human tissue sample taken from Payne's
arm sling. He testified that the tissue on the arm sling could have
been the victim's because of “blow-back” from the shooting of the
shotgun.

Roger D. Morrison, from the Department of Forensic
Sciences, tested a blood sample from the victim and a blood sample
from Payne. He also tested the tissue sample taken from the arm sling.
He conducted an HLA DQ Alpha test for the purpose of a DNA comparison.
He concluded that the tissue from the sling and the bloodstain from
the victim were both of the same HLA DQ Alpha type. According to him,
this type appears in approximately six percent of the population. The
test he performed was an exclusionary test, and he concluded that
there was a 94% chance that the tissue taken from Payne's sling was
the victim's tissue. He further concluded that the tissue taken from
the sling could not have come from Payne himself. Payne presented
testimony from 10 witnesses in an effort to show that it was possible
that another man, by the name of James Beavers, could have committed
this murder. Evelyn Smith, who passed the victim and Payne as they
left Easterling's house on the night of the murder, testified that she
heard her husband say “Hi, James, how are you?” Smith further
testified that the only James she knows is James Beavers. Kelley
Mosley, who was across the street from the West Point Grocery on the
night of March 23, 1992, testified that she saw a blue Ford Maverick
automobile at the store at around 9:00 p.m. and that there were three
people in the automobile. The one in the backseat, she testified, had
shoulder-length hair. James Beavers, who has shoulder-length blond
hair, testified that he lived across the street from Easterling in
March 1992. Beavers testified that he did see Payne on March 23, when
he helped him fix his automobile. He denied having any knowledge of
the crime. Christine Hyde testified that she had a conversation with
James Beavers in December 1992 in which Beavers admitted to shooting
the victim in the face. Becky Graves testified that she was in the
West Point Grocery store at about 8:10 p.m. on March 23, 1992. She
said that while she was in the store she saw a man with shoulder-length
blonde hair. An affidavit from Tracey Shields was read into evidence.
Shields stated that she saw Payne pull up to his mother's house at
around 9:15 p.m. on March 23, 1992, and stated that she saw another
person in the automobile with long hair. Payne did not testify.

The state subsequently presented several rebuttal
witnesses. Most of these witnesses were people who testified that
James Beavers was home on the night of this incident and that he did
not leave his house on that night.

I.

Payne contends that the prosecutor, in his initial
closing argument, impermissibly commented on Payne's failure to
testify. “Article I, § 6, of the Alabama Constitution of 1901 states,
in part, that the accused in a criminal prosecution ‘shall not be
compelled to give evidence against himself.’ This constitutional right
is the basis for the requirement that a criminal defendant's failure
to testify shall not be commented upon by the prosecution. Ex parte
Wilson, 571 So.2d 1251, 1261 (Ala.1990); Whitt v. State, 370 So.2d
736, 738 (Ala.1979). In Alabama, this right is also protected by
statute:

“ ‘On the trial of all indictments, complaints or
other criminal proceedings, the person on trial shall, at his own
request, but not otherwise, be a competent witness, and his failure to
make such a request shall not create any presumption against him nor
be the subject of comment by counsel. If the district attorney makes
any comment concerning the defendant's failure to testify, a new trial
must be granted on motion filed within 30 days from entry of the
judgment.’ “Ala.Code 1975, § 12-21-220.” Ex parte Musgrove, 638 So.2d
1360, 1367 (Ala.1993), cert. denied, Musgrove v. Alabama, 513 U.S.
845, 115 S.Ct. 136, 130 L.Ed.2d 78 (1994).

The questioned comments must be reviewed under the
plain error standard, Ala.R.App.P. 45A, because defense counsel made
no objection to them. “In considering what constitutes ‘plain error’
in a capital case, the Alabama Supreme Court has looked to the federal
court's interpretation of what is ‘plain error.’ See Ex parte Harrell,
470 So.2d 1309 (Ala.1985); Ex parte Womack, 435 So.2d 766 (Ala.1983).

“In United States v. Young, 470 U.S. 1, 105 S.Ct.
1038, 84 L.Ed.2d 1 (1985), the Supreme Court stated that the plain
error doctrine should be used to correct only ‘particularly egregious
errors' (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct.
1584, 1592, 71 L.Ed.2d 816 (1982)) which are those errors that
‘seriously affect the fairness, integrity or public reputation of
judicial proceedings' (quoting United States v. Atkinson, 297 U.S.
157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). Young, supra [470
U.S. at 14-18], 105 S.Ct. at 1046-47. The plain error rule should be
applied ‘solely in those circumstances in which a miscarriage of
justice would otherwise result.’ Young, supra [470 U.S. at 15], 105
S.Ct., at 1047 (quoting Frady, supra, 456 U.S. at 163, n. 14, 102 S.Ct.
at 1592, n. 14).

In Windsor v. State, 683 So.2d 1021, 1023-24
(Ala.1994), the Alabama Supreme Court addressed the standard for
reviewing whether a comment is a comment on an accused's failure to
testify, as follows: “As this Court recently held in Ex parte Musgrove,
638 So.2d 1360 (Ala.1993), ‘When an accused contends that a prosecutor
has made improper comments during a closing argument, the statements
at issue must be viewed in the context of the evidence presented in
the case and the entire closing argument[s] made to the jury....’ 638
So.2d at 1368.... “....

“Alabama, by statute, specifically protects the
privilege against self-incrimination from comment by the prosecution.
§ 12-21-200, Ala.Code 1975. A prosecutor must be extremely careful not
to overstep the mark or to break with the established protocol
regarding statements about that privilege. Musgrove, supra. To
improperly comment on that privilege would be a clear violation of the
defendant's rights under Article I, § 6, Ala. Const. 1901, as well as
the rights protected by the Fifth Amendment as that Amendment is
incorporated into the Fourteenth Amendment to the United States
Constitution.

“In Ex parte Wilson, 571 So.2d 1251, 1261
(Ala.1990), this Court cited the standard endorsed by the United
States Court of Appeals for the Eleventh Circuit:

“ ‘ “[A] statement by a prosecutor is improper if
it was manifestly intended to be, or was of such a character that the
jury would naturally and necessarily take it to be, a comment on the
failure of the accused to testify.” Marsden v. Moore, 847 F.2d 1536,
1547 (11th Cir.), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d
566 (1988); United States v. Betancourt, 734 F.2d 750, 758 (11th
Cir.), cert. denied, 469 U.S. 1021, 105 S.Ct. 440, 83 L.Ed.2d 365
(1984).’ ”

It is with these principles in mind that we review
the prosecutorial comments asserted by Payne to constitute comments on
his failure to testify.

The prosecutor made the first comments during his
argument concerning the jury's consideration of the defense's theory
that James Beavers, rather than Payne, committed the offenses charged.
In listing the evidence arguably indicating Beavers's guilt and the
evidence arguably indicating Payne's guilt and in asking the jury to
weigh one list of evidence against the other, the prosecutor stated:

“[Beavers's] mother, Mrs. Reynolds, said he was
there all that time. [His ex-girlfriend's] son, Terry, said he was
there that night. The police, by their own testimony, continued to
investigate. Every time they would receive an additional report, they
would go out and see if they could find James Beavers.... The
investigation continued. On each occasion, there was no evidence to
tie Mr. Beavers to this situation. He was available in court to
testify. Let's go over to the other side and say what evidence and
what circumstances do you have against the defendant. As I say, I have
always felt what a person does is more reliable than what [is] said by
a third party or whoever. When we go through these, ask yourself, ‘Is
that consistent with a person who is not the defendant or the one that
is guilty of the crime?’ ” (Emphasis added.)

We find the following to be particularly applicable
in this instance: “Because this is a case in which the death penalty
has been imposed, the fact that no objection was made stating the
particular ground asserted on appeal does not prevent our review of
this issue. Ex parte Hart, 612 So.2d 536, 537 (Ala.1992), cert. denied,
508 U.S. 953, 113 S.Ct. 2450 [124 L.Ed.2d 666] (1993). However, the
failure to object

Not only did defense counsel evidently not consider
these comments to be particularly harmful, he also pointed out that
Beavers had testified. In reiterating each witness's testimony
arguably pointing to Beavers's guilt, defense counsel stated: “What
about James Beavers? You got to see him and hear him and what all he
had to say. He had some criminal convictions. If I remember the
evidence, he is older than [Payne]. I think they are even related in
some way. Which one of them had some experience in crime? Which one of
them knew the things to do?” (Emphasis added.)

The only arguable difference between defense
counsel's comment and the prosecutor's argument was that the
prosecutor, after recognizing Beavers's testimony, shifted the focus
to the evidence arguably supporting Payne's guilt. We consider this
second remark to be akin to the comments under scrutiny in Ex parte
Musgrove. There, the prosecutor asked the questions “What did you hear
from the defense?” and “What did you hear from the Defendant?” The
Supreme Court explicitly agreed with the following interpretation of
the latter question:

“ ‘[This comment,] when viewed in the context of
the entire argument, did not refer to the appellant's failure to
testify, but was rather the prosecutor's opening into a summary of the
case presented by the defense. The comment was clearly not a direct
reference to the appellant's failure to testify because it was not
‘manifestly intended to be, or was of such a character that the jury
would naturally and necessarily take it to be, a comment on the
failure of the accused to testify.’ [Citations omitted.] Nor was this
comment an indirect reference to the appellant's failure to testify
and there was no “close identification” of the appellants as the exact
people who did not become witnesses. [Citations omitted.] This
statement by the prosecutor was merely a general opening statement to
a recapitulation of the defense's case.' ” Ex parte Musgrove, 638
So.2d at 1369 (quoting Musgrove v. State, 638 So.2d 1347, 1359 (Ala.Cr.App.1992)),
aff'd, Musgrove v. Alabama, 513 U.S. 845, 115 S.Ct. 136, 130 L.Ed.2d
78 (1994).

We also find persuasive United States v. Chandler,
996 F.2d 1073, 1094-95 (11th Cir.1993), cert. denied, Chandler v. U.S.,
512 U.S. 1227, 114 S.Ct. 2724, 129 L.Ed.2d 848 (1994), in which the
court reviewed the prosecutor's comment that the defendant, Chandler,
was more culpable than one of his cohorts Charles Ray Jarrell, who
testified for the prosecution. In that argument, the prosecutor made
the following comments: “You've heard several times that in return for
his cooperation in this case ... the United States government and the
State of Alabama have agreed to recommend a 25-year sentence without
parole for Charles Ray Jarrell....

“Now, the defendant will no doubt argue this simply
is not somehow not [sic] fair. Charles Ray Jarrell came here before
you and testified before you. You were able to hear his testimony. He
came in here, admitted what he did, came in here and told you what he
did, what kind of person he is and [it] isn't anything to write home
about, there is no question about that. But I submit to you that a man
that was willing to solicit two different prospective killers on at
least three different occasions, a man who was willing to provide
money to people to perform the act, a man who was willing to provide
weapons to complete the act and a man who is cunning and manipulative
is a far more dangerous individual than a self-confessed town drunk
living hand to mouth who allows himself to be manipulated into
actually doing this terrible act.” Id. at 1094 (emphasis added).

In reviewing these remarks, the court stated:
“Viewed in the context in which the statement was made, we find that
the prosecutor's statement was not improper. A common sense reading of
the statement suggests that the prosecutor was arguing that Jarrell
was not as culpable as Chandler. The argument was based, not on
Chandler's failure to testify, but on the facts elicited from
Jarrell's testimony. A jury would not naturally take the argument to
be a comment on Chandler's failure to testify, nor is it obvious that
the remark was so intended.” Id. at 1095.

Accordingly, we find that the first
comments under scrutiny do not constitute plain error. See also Dill
v. State, 600 So.2d 343, 355 (Ala.Cr.App.1991), aff'd, 600 So.2d 372
(Ala.1992), cert. denied, Dill v. Alabama, 507 U.S. 924, 113 S.Ct.
1293, 122 L.Ed.2d 684 (1993) (the court held that the comment-that
Terry Dill was the “only one” from whom the jurors had heard-made
immediately before the prosecutor's lengthy summation of the evidence
corroborating the testimony of Terry Dill (who was in a vehicle with
the victim and the defendant when the defendant shot the victim) was
not a comment on the defendant's failure to testify and even if it was,
it did not amount to plain error).

The second comment by the prosecutor is as follows:
“It is pretty clear up to the point they leave the house here at nine
o'clock that evening-not much conjecture can be involved as far as
that. After that, that is the last time Braxton Brown was seen alive.
He was with the defendant. We assume from the time frame that [Payne]
left here, came back up here, and went down this road here, going back
to the West Point Grocery. The conjecture arises ‘What happened during
that time frame?’ I don't know. I don't know whether [Payne] asked for
the magazine back and Braxton Brown said ‘No way.’ I don't know if he
saw a patrol car. You see, unbeknown to [Payne], he doesn't know any
alarm has gone off. He doesn't know that the police know anything. He
may have passed a patrol car going from the West Point Grocery over
here to where [Payne] lives, and he may have panicked. He may have
thought that Wilma turned him in. He may have thought, ‘Now I have no
choice.’ Or he may have got down here and said, ‘Braxton, I'm going to
let you out here and I'm going to cut a trail here. By the time you
get back up here to get help, I'll be long gone. Let's make a deal. If
I let you out and you don't contact the authorities, we will forget
this happened.’ Maybe at that point, Braxton said, ‘No way. I'm going
to call the police when I get a chance.’ And [Payne] ended it right
there on that bridge. Then he goes to the airport or bus station and
buys the bus ticket.... Whatever scenario you think fits, something
between here and there happened. That is for you to decide. The end
result is that [Payne] undoubtedly was here on this bridge and did the
murder on that occasion.” (Emphasis added.)

Early in his initial closing argument, the
prosecutor explained to the jury that the purpose of an investigation
is to preserve the evidence and the scene for the jury to consider in
the subsequent prosecution, in this case 26 months after the offense.
He further stated, “It is our responsibility at this point and our
duty to re-create by evidence what the circumstances were on that day.”
Some of his argument was couched in the terms what “we” know, e.g.,
“What is the next thing we know?” We conclude that, by the comments
under scrutiny, the prosecutor was merely following this line of
thought; the prosecutor was merely arguing to the jury that even
though the prosecution had not been able to reconstruct the events of
the entire evening, the evidence still pointed to Payne's guilt. See
State v. Windsor, 683 So.2d at 1023 (the Court in finding objected-to
comment-“If we could get into that mind over there [the defendant's]
and put out here what is in there, we would have no reason for a jury.”-without
error stated that “it is apparent that the prosecutor was referring
not to Windsor's failure to testify, but rather to the State's own
failure to produce direct evidence of Windsor's intent”).

Moreover, we find that both defense counsel did not
consider the comments in question to be particularly harmful. In fact,
they used this line of argument to Payne's benefit. Early in his
argument, one defense counsel said: “[The prosecutor] did say that
whatever happened at that bridge, he doesn't know. The State doesn't
know and they have not proven to you what happened or who did what to
Braxton Brown. There are a lot of different theories that can come
up.” Counsel also stated that he did not know, e.g., “Whatever took
place on that night, James Beavers was calculating and making plans
that he didn't want to be seen with Mr. Brown that night”; and “If Mr.
Beavers did in fact do the killing, he could have wiped off the gun
with the sling. I don't know.” The other defense counsel, in arguing
that in order for the jury to convict Payne the evidence had to point
to Payne's guilt beyond a reasonable doubt, stated the following:
“[The prosecutor] told us a few minutes ago-maybe this happened or
maybe that happened. This decision y'all are about to make is too
important to be based on speculation.”

Accordingly, we find that this second comment did
not constitute plain error. Compare Windsor v. State, 593 So.2d 87,
90-92 (Ala.Cr.App.1991) (the court, in reviewing the prosecutor's
comment-“ they can't explain why [the victim's] weapon [which had been
missing since immediately after his death] was in the defendant's
pocket when he was arrested”-made by the prosecutor while pointing at
the defendant, held that the comment was an indirect comment on the
defendant's failure to testify and, further, that the comment could
have been construed as alerting the jury to the defendant's
opportunity to refute the prosecution's case because only the
defendant could have explained why the victim's gun was in his
possession) (emphasis added); Burson v. State, 373 So.2d 1239, 1241 (Ala.Cr.App.1979)
(the court found the following comment to be a direct comment on the
defendant's failure to testify and thus the trial court's overruling
of the defendant's objections was error: “[the defendant] was hiding,
in the closet. Or maybe he was just sitting in the closet. I don't
know, he's not going to tell us.”).

II.

Payne contends that he was denied his Sixth
Amendment right to a speedy trial because there was a 25-month delay
between his indictment and the trial of his case. Payne was arrested
in Dade County, Florida, on March 25, 1992, and was indicted by the
Cullman County grand jury on April 16, 1992. His trial began on May
23, 1994. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d
101 (1972), the United States Supreme Court set forth four factors to
be considered when analyzing a speedy trial claim. These factors are
(1) the length of the delay; (2) reasons for the delay; (3) when the
defendant asserted his right to a speedy trial; and (4) any prejudice
that the defendant has suffered due to the delay. In Barker, the court
stated that because these factors are interrelated, they should be
considered together in light of all the relevant circumstances in a
particular case. The length of the delay is the triggering mechanism
for an examination of the other factors and the delay must be
presumptively prejudicial in order to merit inquiry into the three
other factors. Smith v. State, 409 So.2d 958 (Ala.Cr.App.1981).
Whether the length of the delay is presumptively prejudicial must be
determined on a case-by-case basis. Id.

In this case, the delay between Payne's arrest and
his trial was 25 months. Much of this delay can be attributed to the
retirement of one judge and the recusal of two others. Until September
1993 Judge Jack Riley of Cullman County presided over this case. When
Judge Riley retired, this case was assigned to Judge Frank Brunner, a
newly appointed judge. Judge Brunner recused himself from hearing this
case on January 12, 1994. Judge Fred Folsom was then assigned to the
case. On January 24, 1994, Judge Folsom recused himself from this case
and requested that the Alabama Supreme Court assign a judge. On
February 3, 1994, the Alabama Supreme Court appointed Judge Robert
Austin, of Blount county, to try the case. Judge Austin immediately
ordered a pretrial conference and scheduled the trial to begin on May
23, 1994. Thus for 6 of the 25 months that this case was pending, the
delay was attributable to the problems of finding a judge who could
hear the case. Payne did not file his first motion asserting his right
to a speedy trial until approximately 19 months after his arrest. His
first motion for a speedy trial was also entered after Judge Riley had
retired. His second motion for speedy trial was filed after Judge
Brunner had recused himself and his third motion for speedy trial was
filed on February 14, 1994, 11 days after the Alabama Supreme Court
appointed Judge Austin to the case. Payne was tried approximately
three and one-half months after Judge Austin was appointed to the
case.

Based on the foregoing, we conclude that the delay
of 25 months was not presumptively prejudicial in light of the fact
that much of the delay was due to the problem of finding a judge to
hear the case. This delay is not attributable to either the
prosecution or Payne. Even though we have concluded that this delay
was not presumptively prejudicial, we have reviewed the record in
light of the remaining three factors and find no violation of Payne's
right to a speedy trial. Payne offers no evidence showing that he was
prejudiced by the lapse of time between indictment and trial.

III.

Payne contends that the trial court committed
reversible error by denying his requested jury charge regarding
circumstantial evidence. Payne argues that his requested charge was an
accurate statement of the law, that it was not confusing or misleading,
and that it was not substantially covered by the court's oral charge.

Payne requested the following jury instruction: “I
charge you, the Jury, that if the circumstances as proven are capable
of explanation of any reasonable hypothesis consistent with the
Defendant's innocence and if the circumstances are capable of such
explanation, then the defendant should be acquitted.”

The court denied this charge and instructed the
jury, in pertinent part, as follows: “A conviction may be had upon
evidence which is partially circumstantial so long as the evidence is
so strong and cogent as to prove the guilt of the defendant to a moral
certainty and beyond a reasonable doubt. A conviction may not be had
upon circumstantial evidence if there is an inference consistent with
the innocence of the Defendant.” Payne argues that “inference,” as
used in the court's jury charge, does not mean substantially the same
as “hypothesis,” as used in Payne's requested jury charge. We disagree.

The Random House Dictionary of the English Language,
(6th ed., 1973), defines “hypothesis” as “a proposition, or set of
propositions, set forth as an explanation for the occurrence of some
specified group of phenomena, either asserted merely as a provisional
conjecture to guide investigation (working hypothesis) or accepted as
highly probable in the light of established facts.” Id., at 702 (first
definition). To “infer” is “to derive by reasoning; conclude or judge
from premises or evidence.” Id., at 729 (first definition).

However, the issue here does not hinge, as Payne
argues, solely on the definition of “hypothesis.” Rather, the focus is
on “reasonable hypothesis.” Reason-distinguished by common sense-is
the hallmark of any reasonable hypothesis or inference. Accordingly,
the state is not asked to eliminate every single hypothesis
inconsistent with the defendant's guilt. In Crawford v. State, 112
Ala. 1, 21 So. 214 (1895) (quoted in Cox v. State, 373 So.2d 342, 345
(Ala.Cr.App.1979)), the Supreme Court held:

“It is not every hypothesis of innocence,
reasonable or unreasonable, possible or imaginary, the evidence must
exclude, but only such hypotheses as are reasonable, springing from a
consideration and comparison of the entire evidence.” Id., 112 Ala. at
26, 21 So. at 222.

In the context before us, both “reasonable
hypothesis” and “inference” require an explanation that is both
consistent with the evidence and agreeable to common sense. The
similarity of the meaning of these words is reflected by case law in
which the words are used interchangeably. See, e.g. Watley v. State,
568 So.2d 852, 856 (Ala.Cr.App.1989), cert. quashed, 568 So.2d 857
(Ala.1990) (quoted in McWhorter v. State, 588 So.2d 951 (Ala.Cr.App.1991)).

The trial court may deny a requested jury charge
that is substantially covered by the court's oral charge. Dill v.
State, 600 So.2d 343 (Ala.Cr.App.1991). We hold that Payne's requested
jury charge was substantially covered by the court's oral charge.
Therefore, the court did not err when it denied Payne's requested jury
charge.

IV.

Payne contends that the trial court committed
reversible error by admitting evidence obtained during an allegedly
illegal search of his automobile. At a suppression hearing, Cullman
County Sheriff's Deputy Mitch Love testified as follows. On March 23,
1992, he received a number of radio transmissions regarding a robbery-abduction
at West Point Grocery. The sheriff's deputies were given a description
of the suspect, Max Payne: a white male, driving a light blue Ford
Maverick, and carrying a shotgun. Love drove to Payne's residence.
Payne was not there, but his mother and his sister, Wilma Faye
Easterling, were. Love spoke to Easterling and to Payne's mother.
Easterling told Love that when she was at her house earlier that
evening, Payne had arrived with Brown, bank deposit bags, and a weapon.
She further stated that Payne left her house in the Maverick with the
victim. After this conversation, Love left Payne's house and continued
searching for the Maverick. He found it parked at Easterling's house,
and called for assistance. The automobile windows were down, and Love
looked into the automobile with his flashlight. He observed empty beer
cans, shotgun shells on the floorboard, a sling in the back seat, and
keys in the ignition. Sheriff Laney and Officers Yarbrough, DeMonia,
Nichols, and Weston joined Love at the automobile a few minutes after
Love called for assistance. Sheriff Laney removed the keys from the
ignition.

Sheriff Laney testified as follows. He was
investigating the crime when he heard Love's call. Laney was one of
the first to arrive on the scene with Love. He looked into the
automobile and saw the same things Love testified to seeing. He
removed the keys from the ignition and opened the trunk. The victim's
whereabouts were not known at that time. Laney stated that when he
looked in the trunk, he was looking for the victim.

Phillip Lambert, chief investigator
for the Cullman County Sheriff's department, testified as follows.
Lambert arrived after the trunk had been searched. He looked into the
automobile and observed the same items Laney and Love testified to
seeing, with the exception of the automobile keys. Lambert then spoke
with Easterling. She told him that the Maverick parked on the property
was the same automobile Payne was driving when he left with Brown. She
also told Lambert that he and the other officers “could look in it, do
what [they] wanted to, take it with [them] or anything [they] wanted
to do.” Lambert then determined that Easterling and her husband were
renting the property upon which the automobile was parked. Ted Manus
obtained Easterling's written consent to search the premises. The
sheriff called for a wrecker, and the Maverick was towed to the
sheriff's department, where it was locked and later searched.

Generally, a valid warrantless search must be
accompanied by certain circumstances that would render the act of
obtaining a warrant either useless or unreasonable. One such situation
in which a warrant is not required is when exigent circumstances exist
concurrently with probable cause. Land v. State, 678 So.2d 201 (Ala.Cr.App.1995)
(holding that warrantless search of appellant's vehicle was valid
because the police had probable cause to believe that appellant had
committed the crime, and the vehicle's inherent mobility was a
sufficiently exigent circumstance); see also Johnson v. State, 554
P.2d 51 (Okla.Crim.App.1976), cert. denied, 429 U.S. 943, 97 S.Ct.
364, 50 L.Ed.2d 314 (1976) (holding that immediate warrantless search
of the trunk of defendant's automobile was proper, because the police
believed the kidnapped victim was in there and were acting “in hopes
of saving a human life”).

In this case, the police had the following
information before they removed the automobile keys and opened the
trunk: that Brown's grocery store had been robbed by a white male with
a shotgun; that the suspect was driving a light blue Ford Maverick;
that Brown had been abducted; that after the robbery, Payne drove to
Easterling's house in his light blue Ford Maverick; that when he
arrived there, Brown was with him and he had bank deposit bags and a
gun; that Payne left Easterling's house in his Maverick with Brown,
the bank deposit bags, and the gun; that the Maverick was not parked
in front of Easterling's house between 10:00 p.m. and 10:15 p.m., but
that it was parked there at 10:30 p.m. Therefore, the police had
sufficient information to “ ‘warrant a man of reasonable caution in
the belief’ ” that several crimes had been committed, that the
appellant had committed them, and that the vehicle contained evidence
of the crimes. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535,
1543, 75 L.Ed.2d 502, 514 (1983) (quoting Carroll v. United States,
267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555 (1925)).

Furthermore, in cases involving searches of
automobiles the vehicle's inherent mobility establishes a presumption
of exigent circumstances. Mewbourn v. State, 570 So.2d 805, 810 (Ala.Cr.App.1990)
(“a vehicle's potential for mobility raises the presumption of exigent
circumstances”). In this case, however, the vehicle's mobility was
accompanied by several additional exigent circumstances. For example,
the Maverick had been returned to Easterling's house less than 30
minutes before Love located it. Love testified that he called for
backup and that the whereabouts of Payne and the victim were unknown
at that time. Laney testified that he looked inside the automobile to
determine whether anyone was hiding in the automobile. Laney further
testified that he removed the keys from the ignition in order to open
the trunk to search for the victim. We conclude that the police had
sufficient probable cause to search the automobile, and that the
concomitant exigent circumstances were overwhelming; therefore, the
warrantless visual search of the interior and the trunk of the
Maverick was valid.

The Maverick was later towed to the sheriff's
department where it was thoroughly searched. However, before the
automobile was towed, Easterling gave her express verbal and written
consent to the search. In Johnson v. State, 584 So.2d 881 (Ala.Cr.App.1991),
this court held: “ ‘A defendant has no constitutional right of privacy
where he does not have exclusive possession and control over the place
searched. The person who does have present, exclusive possession and
control over the place in question, or who shares the premises
coequally with the person claiming to be aggrieved, may give consent
to search.’ ” Id., at 886 (quoting C. Gamble, McElroy's Alabama
Evidence § 334.01(3)(b) (3d ed. 1977)). See also Zumbado v. State, 615
So.2d 1223 (Ala.Cr.App.1993) (applying this rule in upholding a
consensual search where the appellant parked his automobile at the
house trailer where he lived with his girlfriend; the girlfriend was
present, but the appellant was not; the girlfriend was apparently in
exclusive control of the premises; and the girlfriend consented to the
search of the automobile).

In this case, Payne parked his automobile on
property rented by Easterling and her husband. Payne left the windows
of the automobile down and left the keys in the ignition. Therefore,
Payne did not have exclusive control over the automobile when it was
searched. Easterling, in contrast, did have apparent exclusive control
of the property, including the automobile. Accordingly, she was
capable of giving valid consent to the search of the automobile. She
gave her consent; therefore, the warrantless search of the automobile
at the sheriff's office was valid.

Furthermore, we note that the automobile was in
plain view, and the police had probable cause to believe that the
automobile itself was evidence of the crimes. See Watson v. State, 533
So.2d 737 (Ala.Cr.App.1988) (“[P]lain view is obtained without any
prior entry or opening of the vehicle.... when the car itself is in
plain view and it is subject to seizure as evidence of a crime....”);
Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).
Therefore, the warrantless seizure of the automobile was proper.

V.

Payne contends that the trial court erred by
admitting an expert witness's DNA testimony (specifically for the
genetic marker HLA DQ Alpha) without first determining the
admissibility of that evidence in a hearing outside the presence of
the jury.FN1 Because Payne neither requested a hearing outside the
jury's presence nor objected to the admission of the DNA testimony on
this ground, we review this issue only for plain error, as required by
Ala.R.App.P. 45A. (Payne made no pretrial motion to suppress this
evidence; however, at trial, he did object to the expert's testing
result, when the witness was asked that result, with the following
objection: “There is no proper predicate for the scientific test
reliability or requirements for the Frye case [ Frye v. United States,
293 F. 1013 (D.C.Cir.1923),] which have been set out in that case have
not been met.”)

FN1. We conclude, from Payne's one-page argument,
that he is not contesting the expert's testimony regarding the experts
statistical interpretation of the test result. Payne quotes only the
three-pronged test for the admission of the DNA “matching” evidence.
See Yelder v. State, 630 So.2d 92, 102 (Ala.Cr.App.1991), rev'd on
other grounds, 630 So.2d 107 (Ala.1992) (quoted by Payne and quoting
Ex parte Perry, 586 So.2d 242, 250 (Ala.1991)).

We find to be significant the fact that the DNA
evidence in this case is not truly “matching” evidence as that term is
used in Ex parte Perry. In Perry, the expert testified that the DNA of
the blood found on the victim and on the front doorknob of his
residence “matched” the appellant's DNA and that the probability of
finding similar DNA was 1 in 209,100,000. In the case before us, the
expert testified that the HLA DQ Alpha type of the tissue from Payne's
arm sling and of the victim's blood was the same, but that Payne's was
different and that six percent of the Caucasian population shares this
type. He explained that the test's primary function is to exclude,
that it is not DNA “fingerprinting.” As authority for his argument,
Payne quotes the following: “Prior to the admission of DNA testimony
into evidence, a hearing outside the presence of the jury must be held
to determine if the [three-pronged] test [announced in Ex parte Perry,
586 So.2d 242 (Ala.1991) ] has been met.” This language can be found
in Yelder v. State, 630 So.2d 92, 102 (Ala.Cr.App.1991), rev'd on
other grounds, 630 So.2d 107 (Ala.1992). See also Hutcherson v. State,
677 So.2d 1174, 1191 (Ala.Cr.App.1994) (quoting this same language
from Yelder ). As support for this mandate in Yelder, the court cites
Ex parte Perry. However, the Alabama Supreme Court in Ex parte Perry
issued no such unqualified mandate.

The Perry Court stated the following: “Earlier, we
stated that Perry contends that the trial court erred by submitting
the DNA evidence to the jury without first holding a hearing
concerning its admissibility. As we explain presently, we do not hold
that the trial court has necessarily erred. “We do hold, however, that
if the admissibility of DNA evidence is challenged, the trial court
should conduct a hearing outside the presence of the jury to address
the considerations raised in this opinion.” 586 So.2d at 254-55 (emphasis
added). We think that implicit in this language is the qualification
that the defendant must request a hearing outside the presence of the
jury.

We are so persuaded by the death penalty case
Felder v. State, 470 So.2d 1321 (Ala.Cr.App.1984), aff'd, 470 So.2d
1330 (Ala.), vacated on other grounds, 474 U.S. 976, 106 S.Ct. 376, 88
L.Ed.2d 330 (1985). There, the appellant, before trial, requested an
evidentiary hearing to determine the voluntariness of his confession.
However, during trial, the officer who had taken the appellant's
statement testified, in the presence of the jury, as to the
voluntariness of the statement and, after defense counsel's voir dire
of the witness, counsel stated that he had no objection to the
admission of the statement. In answer to the appellant's contention
that he was entitled to a hearing on the voluntariness of the
confession outside the presence of the jury, the court made the
following observations:

“[A]n accused is not entitled to a hearing outside
the presence of the jury unless he specifically requests that it be
held outside the presence of the jury. A trial judge is not required
to remove the jury for the hearing absent a request by the accused.
Harris v. State, 406 So.2d 1074[, 1075] (Ala.Crim.App.1981) [ (“On the
question of the voluntariness of a confession, the burden is not on
the trial court to withdraw the jury ex mero motu, hear evidence on
the question of the voluntariness of a confession outside the jury's
presence, and expressly rule.”) ]; Gamble, McElroy's Alabama Evidence,
§ 200.02(5)(6) (3d ed. 1977). Defense counsel did not request a
hearing outside the presence of the jury in his request for an
evidentiary hearing or when he asked to examine Ward on voir dire.

“Therefore, we hold the appellant did receive a
full and fair hearing on the voluntariness of his confession and
cannot now complain that such hearing was not held outside the
presence of the jury.” 470 So.2d at 1326. Cf. also Cliff v. State, 518
So.2d 786, 791 (Ala.Cr.App.1987) (“an accused is not entitled to a
hearing [on the voluntariness of his confession] outside the presence
of the jury unless he specifically requests one”).FN2

FN2. We find cases involving the voluntariness of a
confession to be sufficiently analogous to the question before us to
be persuasive. We do note that confession cases entail an even greater
impetus than is present here, because the rule in confession cases is
“that extrajudicial confessions are prima facie involuntary and
inadmissible and the duty rests in the first instance on the trial
court to determine whether or not a confession is voluntary, and
unless it so appears it should not be admitted.” Taylor v. State, 282
Ala. 567, 569, 213 So.2d 566, 569 (1968), cert. denied, Taylor v.
Alabama, 393 U.S. 1102, 89 S.Ct. 903, 21 L.Ed.2d 795 (1969).

In this case, there is absolutely no implication of
plain error in regard to the admission of the DNA evidence. The expert
witness, in testifying to the following, generally met the
requirements of a predicate for the admission of such testimony, as
announced by the Perry Court: (1) there is a theory, generally
accepted in the scientific community, that supports the conclusion
that DNA forensic testing can produce reliable results, see also Perry,
586 So.2d at 250; Yelder, 630 So.2d at 102; (2) there are current
techniques that are capable of producing reliable results in DNA
identification and that are generally accepted in the scientific
community, see also Perry, 586 So.2d at 250; Yelder, 630 So.2d at 102;
and (3) the testing laboratory performed generally accepted scientific
techniques without error in the performance or interpretation of the
test, i.e., (a) the techniques used by the testing laboratory are
generally accepted in the scientific community, and (b) there was no
error in the performance or interpretation of the tests. Upon this
evidence, the trial court found the DNA result to be admissible. We
note that the trial court had no disputed evidence before it. In fact,
the cross-examination of the expert consists of less than two
transcribed pages. Based on the record, the DNA evidence was properly
received into evidence, and the trial court's failure to ex mero muto
hold a hearing outside the presence of the jury was not plain error.

VI.

Pursuant to Ala.R.App.P. 45A, we have examined the
record in this case for plain error, whether or not it was brought to
our attention or the trial court's attention. After a careful search
of the record, we have found no plain error or defect in either the
guilt or sentencing phases of the trial.

Pursuant to § 13A-5-53, we have reviewed Payne's
sentence. This section requires this court to review the propriety of
the death sentence, as well as to review the case for any error
involving the conviction. This review includes a determination of the
following: (1) whether error that adversely affected Payne's rights
occurred during his sentence proceedings; (2) whether findings by the
trial court concerning aggravating and mitigating circumstances were
supported by the evidence; and (3) whether death is the proper
sentence in this case. Section 13A-5-53(b) requires that in
determining whether death is the proper sentence, this court must
determine the following: (1) whether the death sentence was imposed
under the influence of passion, prejudice, or any other arbitrary
factor; (2) whether after this court undertakes an independent
weighing of the aggravating and mitigating circumstances it determine
that death is considered the proper sentence; and (3) whether the
death sentence is excessive or disproportionate to the penalty imposed
in similar cases, considering both the crime and the appellant.

A separate sentencing hearing was
held before the jury pursuant to §§ 13A-5-45 and -46. The jury heard
evidence concerning aggravating and mitigating circumstances. It was
properly instructed by the trial court on the applicable law and after
being so informed returned an advisory verdict of 11 in favor of death
and 1 in favor of life imprisonment without the possibility of parole.

The trial court held another hearing in accordance
with § 13A-5-47, in order to determine whether to follow the jury's
recommendation. The trial court ordered and received a written
presentence investigation report as required by § 13A-5-47(b). The
trial court entered specific written findings on the existence or
nonexistence of aggravating circumstances set forth in § 13A-5-49 as
well as the existence or nonexistence of any mitigating circumstances
set forth in § 13A-5-51 and § 13A-5-52. The trial court also
enumerated specific findings of fact summarizing the crimes and
Payne's participation in them. The trial court found the existence of
the following aggravating circumstance: “The Court makes a finding of
fact that the capital offense was committed while the defendant was
engaged or was an accomplice in the commission of or an attempt to
commit, the offense of robbery and the offense of kidnapping.” The
trial court noted that this was the only aggravating circumstance
argued by the state and the only aggravating circumstance considered
by the court.

The trial court also considered mitigating
circumstances as set forth in § 13A-5-51 and § 13A-5-52. The trial
court found one statutory mitigating circumstances as set forth in §
13A-5-51, Payne's age at the time of the offense. The trial court also
found certain nonstatutory mitigating circumstances as set forth in §
13A-5-52. These mitigating circumstances were: that Payne was under
the influence of drugs and alcohol at the time of the commission of
these offenses; that Payne was undergoing some emotional problems
concerning the alleged paternity of a child that he thought was his;
that Payne had had a bad childhood because of his stepfather's alcohol
problems, his stepfather's abuse of his sister, his mother's numerous
marriages, and a generally poor childhood environment; and that Payne
currently appears to have a good relationship with his family. In
addition, the trial court considered the presentencing report,
evidence presented at trial and at the sentencing hearings, and the
advisory verdict of the jury. Payne had the opportunity to rebut the
evidence contained in the presentencing report. The trial court
weighed the aggravating circumstance against the mitigating
circumstances and finding that the aggravating circumstance outweighed
the mitigating circumstances, sentenced Payne to death.

We have carefully searched the record of both the
guilt and the sentence phases of the appellant's trial, and we have
found no error warranting reversal. In reviewing the sentence, we find
no evidence that the sentence was imposed under the influence of
passion, prejudice, or any other arbitrary factor. The findings and
conclusions of the trial court are supported by the evidence. We
concur in the judgment of the trial court that death is the
appropriate sentence in this case. Our independent weighing of the
aggravating circumstance and mitigating circumstances convinces us
that the sentence of death is appropriate for this appellant. We find
that the sentence of death is neither excessive nor disproportionate
to the penalty imposed in similar cases.

Accordingly, Payne's conviction and sentence of
death are due to be, and they are hereby, affirmed. AFFIRMED. All
Judges concur.

Max Landon Payne was convicted on
three counts of capital murder (all relating to one killing): count
one charged Payne with intentional murder committed during an
abduction with the intent to accomplish or aid the commission of
robbery or flight therefrom, pursuant to § 13A-5-40(a)(1), Ala.Code
1975; count two charged Payne with intentional murder during an
abduction with the intent to inflict serious physical injury, pursuant
to § 13A-5-40(a)(1); and count three charged Payne with intentional
murder during a robbery in the first degree, pursuant to §
13A-5-40(a)(2). After the sentencing phase of the trial, the jury
recommended the death penalty. The trial court accepted the
recommendation and sentenced Payne to death. The Court of Criminal
Appeals affirmed the conviction and death sentence. Payne v. State,
683 So.2d 440 (Ala.Crim.App.1995).

Payne raises four issues on appeal: (1) Did the
Court of Criminal Appeals correctly hold that certain comments made by
the prosecutor during closing arguments did not infringe upon Payne's
right to remain silent? (2) Did the trial court err in failing to give
certain jury charges requested by Payne? (3) Was Payne denied his
right to a speedy trial? and (4) Did the trial court commit reversible
error by admitting evidence obtained during what Payne says was an
illegal search of his automobile?

The Court of Criminal Appeals set out the facts in
its opinion. However, we feel it necessary to recite the facts as
stated by that court in order to better present the issues. “On March
23, 1992, Braxton Brown, the owner of West Point Grocery in Cullman,
Alabama, was robbed, abducted, and subsequently shot two times in the
face with a shotgun. He died as a result of the shotgun wounds and his
body was found the following day in Crooked Creek.

“The state's evidence tended to show that Payne was
at his sister's house, where he was living at the time, in the company
of his girlfriend and two other people in the early evening hours of
March 23, 1992. Sandra Walker, Payne's girlfriend, testified that she
did not know the other two individuals with Payne. The three left at
around 6:00 p.m. Payne returned to the house about 10 minutes later
and went to the closet and removed his double-barreled shotgun. Wilma
Faye Easterling, Payne's sister, asked Payne why he needed his shotgun.
Payne replied, ‘In case somebody fucks with me.’ Walker identified
Payne's double-barreled shotgun in court.

“At approximately 8:33 p.m. on March 23, 1992, Judy
Gail Byrum [an employee of the company that monitored the alarm system
at the West Point Grocery Store] received an alarm from West Point
Grocery. At 8:36 p.m. sheriff's deputy Jason Allen received a call
that there had been a holdup at West Point Grocery. Allen notified
Toby Welch, a dispatcher, who subsequently asked Gordon Nichols to
respond to the scene. Nichols, a deputy sheriff with the Cullman
County Sheriff's Department, responded to the call and arrived at West
Point Grocery at 8:48 p.m. Nichols discovered the door of the store
open and that some of the lights were off in the store. The lights
outside the store were also off. Nichols also observed several packs
of Marlboro cigarettes lying on the floor in front of the counter.
Nichols did not find anyone in the store. He notified the dispatcher
and secured the area. Bobby Watson, a sergeant with the Cullman County
Sheriff's Department, arrived on the scene at approximately 9:08 p.m.
He subsequently requested that an investigator be sent to the scene.
Payne had been seen at West Point Grocery by two customers, Christy
Sue Godsey and Becky Noone, around 8:25 or 8:30 p.m. Sometime after
this and before 9:00 p.m. that evening, Payne arrived at his sister
Faye Easterling's house. The victim, Braxton Brown, was with him.
Sandra Walker, Payne's girlfriend, was present. At trial, Walker
identified a photograph of Brown as a photograph of the man with Payne
that evening. Walker testified that when the two men entered the house,
Easterling asked Payne what was going on. Walker testified that Brown
had three bank deposit bags and two cartons of Marlboro cigarettes
with him. Walker identified the three bank deposit bags at trial.
Brown told Easterling that he heard that she was pregnant and also
that he heard that she needed ‘that,’ referring to money. Easterling
told Brown that she did not want the money. Brown asked her again to
take the money, and Easterling said that she did not want the money.

“Walker testified that Brown appeared very nervous
and scared. Payne instructed Brown to give Easterling the money he
owed her. Brown took out four $5.00 bills and laid them on the kitchen
table. Walker testified that Easterling and Payne then went to the
bathroom, which is located next to the kitchen. Walker testified that
the door to the bathroom was open and that she overheard Easterling
saying ‘don't do this' several times.

“Walker further testified that she, Payne, and
Payne's two sisters had been involved in an automobile accident the
week before and that Payne was wearing a sling on his left shoulder as
a result of an injury he received. Walker testified that Payne had a
gun in his right hand, inside the sling, on the night he arrived at
the house with Brown. Walker identified a handgun at trial as the one
that Payne carried that night. Walker testified that Easterling asked
Payne to give the gun back to Brown. Payne refused. Then Payne gave
Brown the clip out of the gun. Easterling asked Payne to leave Brown
with her or to take him back to his store and said that ‘maybe he
would forget about this.’ Walker testified that at this point, Brown
nodded in the affirmative. Payne responded, ‘No, I am going to do this.’
Then Payne left with Brown.

“When they were leaving the house, Payne and Brown
met Ricky Smith and his wife Evelyn. Ricky Smith testified that he
arrived at Easterling's house around 8:55 or 9:00 p.m. that evening.
This was the last time that Brown was seen alive. Smith testified that
when he walked into Easterling's house, she was crying. Easterling was
speaking to Smith's wife and he overheard her say that Payne had
robbed and kidnapped Brown.

“At approximately 9:15 p.m., Payne arrived at
George Cleghorn's house. Payne asked Cleghorn if he could use his
telephone. Payne called someone on the telephone and asked them if
they had any bullets for a .22 rifle. Payne also asked Cleghorn if he
had any bullets. Cleghorn identified Payne's clothing at trial as the
clothing that he was wearing the night of this incident.

“Shortly after 9:08 p.m., Payne's sister Alma
arrived at the West Point Grocery and informed Sergeant Watson that
Payne was traveling in a blue Ford Maverick automobile with one
missing headlight. Based on the information that Watson received from
Payne's sister, Watson ordered the dispatcher to issue an all-points
bulletin to be on the lookout for the automobile and to advise all
officers that Payne was in the company of Braxton Brown.

“At 10:00 p.m. that evening, Investigator Ted Manus
was at the West Point Grocery taking pictures of the scene when he
received a call that gunshots had been heard. He went to see if he
could locate the origin of the shots but could not. Manus returned to
the store and secured several packages of cigarettes from the store
that were found on the floor. He then received a call that Brown had
been seen with Payne. Manus also received information that Brown and
Payne were seen together at a residence near Bethel. Manus left the
store and proceeded to the residence.

“Mitchell Love, an investigator with the Cullman
County Sheriff's Department, arrived at Easterling's residence at
approximately 10:15 p.m. Love testified that he located a blue Ford
Maverick automobile outside this residence. Love had previously
received word to be on the lookout for an automobile matching this
description. Love notified the dispatcher that he had located the
vehicle and asked for assistance on the scene. Several other officers
arrived shortly thereafter. The officers looked inside the vehicle and
observed several beer cans, some live [shotgun shells and some]
expended shotgun shells and an arm sling.

“Phillip Lambert, the chief investigator for the
sheriff's department, arrived at Easterling's residence. He also
looked inside the Ford Maverick and observed two spent shotgun shells,
several unspent shotgun shells, and an arm sling. He later called for
a tow truck to have the automobile towed to the sheriff's department.

“At 12:05 a.m., on March 24, 1992, Rebecca
Herbstreth, a ticket agent for Greyhound Bus Lines in Birmingham,
Alabama, sold someone identifying himself as James Beavers a bus
ticket to Key West, Florida. At trial, Herbstreth identified Payne as
the individual who claimed to be James Beavers. Herbstreth testified
that she noticed that Payne was wearing a white T-shirt and torn blue
jeans that had blood stains on them. Herbstreth further testified that
Payne had cuts on his face. Payne gave Herbstreth a gold chain when he
bought his ticket. Herbstreth identified this gold chain at trial. The
chain was subsequently identified by the victim's son as one offered
for sale from West Point Grocery. Payne handed out cigarettes to
passengers while waiting for his bus and also helped one individual
pay for a bus ticket. Herbstreth testified that Payne had tied to his
waist a blue money bag that contained a lot of money. Herbstreth
stated that Payne told her he received this money from the sale of his
automobile.

“At approximately 7:50 a.m. on the morning of March
24, 1992, a man walked into the Greyhound Bus Station in Birmingham
with a wallet that he had found about a block away. Herbstreth was
still working. She called the Birmingham police. Herbstreth looked in
the wallet and found Braxton Brown's Social Security card inside.
Herbstreth identified the wallet at trial. Inside were nine different
credit cards, all of which had Braxton Brown's name on them.

“On March 24, 1992, Officer Mitchell Love went to
Payne's mother's residence. Payne's sister, Alma Lee, was present at
the residence. Lee gave Love a double-barreled shotgun that she had in
the trunk of her automobile. At trial, Love identified the shotgun
that he received from Lee. It is the same shotgun that Walker
identified as Payne's shotgun.

“Also on March 24, 1992, Deputy Sheriff Sidney
Yarbrough searched the blue Ford Maverick automobile that had been
towed from Easterling's house the night before. Inside he found two
spent shotgun shells and four shotgun shells that had not been fired.
He identified these shells at trial. Yarbrough also found a blue arm
sling in the automobile, which he identified at trial.

“Volunteer fireman John Hardin, a resident of West
Point, searched for Braxton Brown on the morning of March 24. He went
to a bridge on Crooked Creek near West Point. He noticed a dark
colored substance on the bridge and on the railing of the bridge. He
discovered a partial dental plate on the bridge. He contacted the
sheriff's department.

“Phillip Lambert, Ted Manus, and Anthony Dotson
arrived at the bridge. Lambert observed red stains on the bridge and
the partial plate. Lambert also observed a broken set of eyeglasses
and a lens on the bridge. These glasses were subsequently identified
by the victim's son as belonging to his father. Manus discovered a
body in the creek. When the body was brought up from the creek, Manus
observed that most of the face was missing. Dotson, who was serving as
the coroner on this date, was present when the body was removed from
the water. Dotson testified that the victim had suffered two gunshot
wounds to the face. There were two large holes in the face-one in the
victim's forehead and one in his mouth. Dotson knew Brown and
identified the victim as Braxton Brown.

“Lambert testified that he believed that the holes
in the victim's face were the result of a shotgun blast. The victim's
body was taken to Moss Funeral Home and was later released to Peggy
Lindsey of the Alabama Department of Forensic Sciences for an autopsy.

“On March 25, 1992, a detective from the Metro Dade
County Police Department in Miami, Florida, received a telephone call
that Payne was due to arrive at the Greyhound bus station in Miami.
The Cullman authorities provided Detective John Robert Butchko with
Payne's description and informed him that Payne was involved in a
robbery-murder in Cullman, Alabama. Butchko also received information
that Payne would be carrying a green duffel bag and was probably armed.
Butchko was further informed that Payne was likely traveling under the
name of James Beavers.

“Based on this information, Butchko arrived at the
Greyhound bus station and awaited the arrival of Payne's bus. A
security guard held everyone on the bus so that Butchko could identify
the people exiting. Butchko approached Payne, who was carrying a green
duffel bag, after he exited the bus. Payne identified himself as James
Beavers. Butchko was about to pat Payne down for weapons when Payne
informed him that he had a .25 caliber gun in his right rear pocket.
Butchko identified a Sterling .25 caliber automatic pistol at trial as
the gun that he removed from Payne's pocket. This is the same gun that
Sandra Walker previously identified as the gun she saw Payne with at
Easterling's house when he was with the victim. This gun was also
identified at trial by the victim's son as having belonged to his
father. Butchko also removed Payne's wallet from his pocket. The
identification in the wallet was that of Max Landon Payne. Butchko
identified the wallet and its contents at trial.

“Payne was subsequently transported to the homicide
division of the Metro Dade County Police Department. Butchko saw Payne
again in an investigation room at the station. Butchko asked Payne if
he could search his green duffel bag. Payne subsequently signed a
consent form allowing Butchko to search the duffel bag. The consent
form was admitted into evidence and identified at trial. Upon
searching the duffel bag, Butchko found many items, including the
following that he identified at trial: a jeweler's invoice made out to
West Point Grocery; a Greyhound bus ticket in the name of James
Beavers; a State of Alabama vehicle registration in the name of
Braxton Brown; three cartons of Marlboro cigarettes; three First
Alabama Bank deposit bags containing numerous checks written to West
Point Grocery, credit card receipts, rings, and food stamps; bank
receipts in Braxton Brown's name; $196.54 found in Payne's wallet; and
$889.30 found in the bank bags. Many of these items were subsequently
identified by the victim's son as coming from West Point Grocery.

“Further testimony was heard from Peggie Lindsey,
an investigator with the Alabama Department of Forensic Sciences.
Lindsey transported Brown's body to Birmingham for an autopsy. Dr.
Joseph Embry performed the autopsy, and Lindsey assisted. Lindsey
testified that Embry removed around 466 shotgun pellets from the
victim's skull. Lindsey also testified that Dr. Embry removed a blood
sample from the victim, which she later delivered to a serologist in
Huntsville. Lindsey testified that the victim died from the gunshot
wounds to his head.

“Brent Wheeler, with the Alabama Department of
Forensic Sciences in Huntsville, examined the shotgun pellets, the
shotgun, and the two spent shotgun shells found in Payne's automobile.
He also examined the pellets that were taken from the victim's skull.
Wheeler concluded that the pellets removed from the victim's head
represented the pellets of two shotgun shells, maybe three. He also
testified that the two spent shotgun shells that were found in Payne's
automobile were the same type of shells that had been used to shoot
the victim. Wheeler further testified that the two expended shells
found in the automobile had been fired from Payne's shotgun that had
been taken from the trunk of his sister's automobile. Wheeler stated
that the pellets taken from the victim's skull could have come from
the two empty shotgun shells found in the automobile. Wheeler
testified that it was his opinion that the victim was shot from a
distance of one to one and one-half feet.

“Morris Glen Brown, a serologist for
the Alabama Department of Forensic Sciences, tested a blood sample
taken from the victim. Brown testified that the victim's blood was
‘type-ABO, type was type O, Erythrocytic D-type 2-1 PGM, type 1, DAP,
type B.’ Brown also tested a human tissue sample taken from Payne's
arm sling. He testified that the tissue on the arm sling could have
been the victim's because of ‘blow-back’ from the shooting of the
shotgun.

“Roger D. Morrison, from the Department of Forensic
Sciences, tested a blood sample from the victim and a blood sample
from Payne. He also tested the tissue sample taken from the arm sling.
He conducted an HLA DQ Alpha test for the purpose of a DNA comparison.
He concluded that the tissue from the sling and the bloodstain from
the victim were both of the same HLA DQ Alpha type. According to him,
this type appears in approximately six percent of the population. The
test he performed was an exclusionary test, and he concluded that
there was a 94% chance that the tissue taken from Payne's sling was
the victim's tissue. He further concluded that the tissue taken from
the sling could not have come from Payne himself. Payne presented
testimony from 10 witnesses in an effort to show that it was possible
that another man, by the name of James Beavers, could have committed
this murder. Evelyn Smith, who passed the victim and Payne as they
left Easterling's house on the night of the murder, testified that she
heard her husband say ‘Hi, James, how are you?’ Smith further
testified that the only James she knows is James Beavers. Kelley
Mosley, who was across the street from the West Point Grocery on the
night of March 23, 1992, testified that she saw a blue Ford Maverick
automobile at the store at around 9:00 p.m. and that there were three
people in the automobile. The one in the backseat, she testified, had
shoulder-length hair. James Beavers, who has shoulder-length blond
hair, testified that he lived across the street from Easterling in
March 1992. Beavers testified that he did see Payne on March 23, when
he helped him fix his automobile. He denied having any knowledge of
the crime. Christine Hyde testified that she had a conversation with
James Beavers in December 1992 in which Beavers admitted to shooting
the victim in the face. Becky Graves testified that she was in the
West Point Grocery at about 8:10 p.m. on March 23, 1992. She said that
while she was in the store she saw a man with shoulder-length blonde
hair. An affidavit from Tracey Shields was read into evidence. Shields
stated that she saw Payne pull up to his mother's house at around 9:15
p.m. on March 23, 1992, and stated that she saw another person in the
automobile with long hair. Payne did not testify.

“The state subsequently presented several rebuttal
witnesses. Most of these witnesses were people who testified that
James Beavers was at home on the night of this incident and that he
did not leave his house on that night.” 683 So.2d at 443-47.

1. Did the Court of Criminal Appeals correctly
hold that certain comments made by the prosecutor during closing
arguments did not infringe upon Payne's right to remain silent?

Payne argues that comments made by the State in its
closing arguments prejudiced him; he contends they were directed at
his constitutional right not to testify. He says the comments by the
State led the jury to believe that people are more likely to be
innocent if they themselves testify rather than rely on the testimony
of other persons. The State argues that the comments, taken in the
context of the entire closing arguments, do not constitute reversible
error.

The United States Supreme Court held in Griffin v.
California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), that a
prosecutor's direct comment on the defendant's failure to testify
violates the defendant's rights under the Fifth and Fourteenth
Amendments to the United States Constitution. Also, an indirect
statement, one of such character that the jury would naturally and
necessarily take it to be a comment on the defendant's failure to
testify, violates the defendant's constitutional rights. Marsden v.
Moore, 847 F.2d 1536 (11th Cir.), cert. denied, 488 U.S. 983, 109 S.Ct.
534, 102 L.Ed.2d 566 (1988). Also, such a statement violates the
defendant's rights under the Alabama Constitution. Beecher v. State,
294 Ala. 674, 320 So.2d 727 (1975).

Because Payne did not object at trial to the
comments he now complains of, we must review the statements under the
plain error rule and take appropriate action if plain error is evident,
even though the error was not complained of at trial. Rule 45A,
A.R.App.P.; Powell v. State, 631 So.2d 289 (Ala.Crim.App.1993). The
plain error rule requires not only that the claimed error seriously
affected substantial rights of the defendant, but also that the error
had an unfair prejudicial impact on the jurors' deliberations. United
States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985).

At trial, Payne's defense was that a man named
James Beavers committed the crime. In discussing this defense, the
prosecutor asked the jury to compare the evidence against Beavers with
the evidence that Payne committed the murder: “[Beavers's] mother, Mrs.
Reynolds, said he was there all that time. [His ex-girlfriend's] son,
Terry, said he was there that night. The police, by their own
testimony, continued to investigate. Every time they would receive an
additional report, they would go out and see if they could find James
Beavers.... The investigation continued. On each occasion, there was
no evidence to tie Mr. Beavers to this situation. He was available in
court to testify. Let's go over to the other side and say [see] what
evidence and what circumstances do you have against the defendant. As
I say, I have always felt what a person does is more reliable than
what [is] said by a third party or whoever. When we go through these,
ask yourself, ‘Is that consistent with a person who is not the
defendant or the one that is guilty of the crime?’ ” R.T. 747 (emphasis
added).

We note that defense counsel's failure to object to
these comments does not prevent our review. However, the failure to
object should be weighed as part of our evaluation of the comments,
because the failure to object may suggest that the defense did not
consider the comments to be particularly harmful. Ex parte Kennedy,
472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88
L.Ed.2d 325 (1985).

We agree with the Court of Criminal Appeals that
United States v. Chandler, 996 F.2d 1073, 1094-95 (11th Cir.1993),
cert. denied, 512 U.S. 1227, 114 S.Ct. 2724, 129 L.Ed.2d 848 (1994),
is persuasive regarding the interpretation of the prosecutor's
comments. In Chandler, the court reviewed the prosecutor's statement
that the defendant, Chandler, was more culpable than one of his
cohorts, Charles Ray Jarrell, who testified for the prosecution. In
that argument, the prosecutor made the following comments: “You've
heard several times that in return for his cooperation in this case
... the United States government and the State of Alabama have agreed
to recommend a 25-year sentence without parole for Charles Ray Jarrell....

“Now, the defendant will no doubt argue this simply
is not somehow not [sic] fair. Charles Ray Jarrell came here before
you and testified before you. You were able to hear his testimony. He
came in here, admitted what he did, came in here and told you what he
did, what kind of person he is and [it] isn't anything to write home
about, there is no question about that. But I submit to you that a man
that was willing to solicit two different prospective killers on at
least three different occasions, a man who was willing to provide
money to people to perform the act, a man who was willing to provide
weapons to complete the act and a man who is cunning and manipulative
is a far more dangerous individual than a self-confessed town drunk
living hand to mouth who allows himself to be manipulated into
actually doing this terrible act.” Id. at 1094 (emphasis added).

In reviewing these remarks, the court stated:
“Viewed in the context in which the statement was made, we find that
the prosecutor's statement was not improper. A common sense reading of
the statement suggests that the prosecutor was arguing that Jarrell
was not as culpable as Chandler. The argument was based, not on
Chandler's failure to testify, but on the facts elicited from
Jarrell's testimony. A jury would not naturally take the argument to
be a comment on Chandler's failure to testify, nor is it obvious that
the remark was so intended.” Id. at 1095.

Based on the foregoing, we hold that the
prosecutor's comment did not constitute an impermissible comment on
Payne's right to remain silent. The comment, read in context, was not
a direct or indirect comment on Payne's failure to testify. A jury
would not naturally and necessarily infer that this was a comment on
Payne's failure to testify. Rather, it was a summation of the
defense's case versus the evidence presented by the State, Payne's
defense being that someone else killed Brown.

This case is similar to Dill v. State, 600 So.2d
343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied,
507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993), wherein the
prosecutor stated that the defendant's brother was the only one from
whom the jurors had heard; the statement was held not to be a comment
on the defendant's silence. The comment, read in context, was that the
defendant's brother, who testified for the prosecution, was the only
one who told the truth. The prosecutor then went through a lengthy
summation of the testimony that supported the brother's testimony.
This was made in response to defense counsel's closing argument, which
had attacked the brother's credibility; the comment was held not to
amount to plain error.

Payne argues that the following comments by the
prosecutor were also an impermissible reference to his right not to
testify: “It is pretty clear up to the point they leave the house here
at nine o'clock that evening-not much conjecture can be involved as
far as that. After that, that is the last time Braxton Brown was seen
alive. He was with the defendant. We assume from the time frame that [Payne]
left here, came back up here, and went down this road here, going back
to the West Point Grocery. The conjecture arises ‘What happened during
that time frame?’ I don't know. I don't know whether [Payne] asked for
the magazine back and Braxton Brown said ‘No way.’ I don't know if he
saw a patrol car. You see, ... [Payne] ... doesn't know any alarm has
gone off. He doesn't know that the police know anything. He may have
passed a patrol car going from the West Point Grocery over here to
where [Payne] lives, and he may have panicked. He may have thought
that Wilma turned him in. He may have thought, ‘Now I have no choice.’
Or he may have got down here and said, ‘Braxton, I'm going to let you
out here and I'm going to cut a trail here. By the time you get back
up here to get help, I'll be long gone. Let's make a deal. If I let
you out and you don't contact the authorities, we will forget this
happened.’ Maybe at that point, Braxton said, ‘No way. I'm going to
call the police when I get a chance.’ And [Payne] ended it right there
on that bridge. Then he goes to the airport or bus station and buys
the bus ticket.... Whatever scenario you think fits, something between
here and there happened. That is for you to decide. The end result is
that [Payne] undoubtedly was here on this bridge and did the murder on
that occasion.” R.T. 755-57. (Emphasis added.)

As with the earlier comments, Payine's counsel
apparently did not find these statements to be particularly harmful,
because he did not object. Again, we must review them under the plain
error rule and weigh the lack of an objection as part of our
evaluation of the comments.

Before making these comments, the prosecutor told
the jury that witnesses had been presented by both sides and that it
was the jury's duty to determine which, if any, statements made by a
witness it believed. He also told them that in closing arguments both
sides may make inferences from the evidence and that the jury could
agree or disagree with those inferences. He also stated that it was
the prosecutor's job to re-create through the testimony of witnesses
what the circumstances were on the day of the murder. He also for some
of his argument uses the term “we,” e.g., “we assume that ...” and
“there's no way we could rebut that.” As for the use of the word “we,”
the prosecutor was referring to the fact that more than one prosecutor
tried the case.

Viewing the comments Payne claims are improper in
light of earlier comments made by the prosecutor during closing
arguments, we conclude that no error occurred. The prosecutor was
merely summarizing the case and commenting on inferences from the
evidence presented. That is, the prosecutor was merely commenting that
even though the prosecution had not been able to reconstruct every
event of the evening, one could reasonably infer from the evidence
presented that Payne was guilty.

It is well settled that the State can comment on
the fact that its evidence is uncontradicted or has not been denied.
Ex parte Wilson, 571 So.2d 1251 (Ala.1990); Ex parte Williams, 461
So.2d 852 (Ala.1984). However, the prosecutor cannot make comments
that invade the right of the defendant not to testify. Id. We hold
that the prosecutor's comments did not invade that right.

Also, we note that in his closing arguments Payne's
counsel used these same inferences drawn from the prosecutor's
inability to reconstruct every event of the evening. He commented on
the fact that the State did not know what had happened on the bridge
and did not prove what happened, or who did what, to the victim. He
also commented on what Beavers could have been doing at the time at
which the State says the jury could infer that Payne was committing
the murder. Payne's counsel stated that the State said “maybe this
happened or maybe that happened,” but that a guilty verdict was “too
important to be based on speculation.”

2. Did the trial court err in failing to give
certain jury charges requested by Payne?

Payne requested the following jury instruction: “I
charge you, the Jury, that if the circumstances as proven are capable
of explanation of any reasonable hypothesis consistent with the
Defendant's innocence and if the circumstances are capable of such
explanation, then the defendant should be acquitted.”

The court denied this charge and instructed the
jury, in pertinent part, as follows: “The evidence that I have talked
to you about in this case is evidence that has been testified to or
introduced in some way. Now, some of the evidence in this case has
been what we call circumstantial. Circumstantial evidence is defined
under the law as positive proof of circumstances or facts sought which
tend to prove the existence of other facts sought to be proven.
Circumstantial evidence is an inference that is drawn from certain
physical facts that are found as a result of the evidence. As I told
you, the defendant in this case is presumed to be innocent. When part
or all of the evidence that is relied on by the prosecution in a case
is circumstantial, the chain of circumstances must be so complete and
of such a character so as to convince you beyond a reasonable doubt
and to a moral certainty of the defendant's guilt. The evidence must
be so strong and cogent as to show the defendant's guilt beyond a
reasonable doubt, then you should find the defendant not guilty [sic].

“A conviction may be had upon evidence which is
partially circumstantial so long as the evidence is so strong and
cogent as to prove the guilt of the defendant to a moral certainty and
beyond a reasonable doubt. A conviction may not be had upon
circumstantial evidence if there is an inference consistent with the
innocence of the defendant. Evidence of circumstantial nature may be
sufficient to convict if such evidence convinces the jury beyond a
reasonable doubt of the guilt of the accused. What I just told you
there is if some of the evidence relied on is circumstantial, the
burden is the same. The State must prove to you through those
circumstances the guilt of the defendant beyond a reasonable doubt.
That would be the duty that would be placed upon the State in this
case.” R.T. 815-17 (emphasis added).

Payne argues that “inference,” as that term is used
in the court's jury charge, does not mean substantially the same as “hypothesis,”
as used in Payne's requested jury charge. The State contends that
there was no need for the trial court to give the jury charge
requested by Payne because, it argues, the charge given by the trial
court substantially covered the same subject matter.

We agree with the statement of the Court of
Criminal Appeals that “the state is not asked to eliminate every
single hypothesis inconsistent with the defendant's guilt,” rather
“only such hypotheses as are reasonable, springing from a
consideration and comparison of the entire evidence.” 683 So.2d at
452, quoting Crawford v. State, 112 Ala. 1, 21 So. 214 (1896), and Cox
v. State, 373 So.2d 342, 345 (Ala.Cr.App.1979).

Black's Law Dictionary 743 (6th ed.1990), defines
“hypothesis” as “A supposition, assumption, or theory; a theory set up
by the prosecution, on a criminal trial, or by the defense, as an
explanation of the facts in evidence, and a ground for inferring guilt
or innocence, as the case may be, or as indicating a probable or
possible motive for the crime.” (Emphasis added.)

In support of his argument, Payne cites Ex parte
Smiley, 655 So.2d 1091 (Ala.1995), for the proposition that the judge
should have used the word “hypothesis” rather than “inference.”
However, Smiley differs from this case in that it did not address a
jury charge; rather it addressed the sufficiency of the evidence in a
murder case. We stated in Smiley that a person's presence at the scene
of a crime is not enough to justify a conviction for the crime, but
that the person's presence at the scene, taken along with other facts
and circumstances tending to connect that person with the crime, may
be enough to support a conviction. 655 So.2d at 1094. We also set out
in Smiley the applicable test:

“[W]hether a jury might reasonably
find that the evidence excluded every reasonable hypothesis except
that of guilt; not whether the evidence excludes every reasonable
hypothesis but guilt, but rather whether a jury might reasonably
conclude that it does.... Stated differently, to support the jury's
verdict of guilty, circumstantial evidence and reasonable inferences
therefrom have to be inconsistent with any rational hypothesis of
innocence.”655 So.2d at 1094. (Emphasis added.) The test in Smiley
states that an inference or a hypothesis of innocence must be a
reasonable one.

The refusal of a requested written instruction is
not a cause for reversal, even if the requested charge is a correct
statement of the law, so long as it appears that the same rule of law
was substantially and fairly given to the jury in the court's oral
charge or in other charges given at the request of the parties. Rule
21.1, Ala.R.Cr.P.; Marek v. State, 556 So.2d 383 (Ala.1989) (if
requested charge is subsumed in the court's oral charge, the refusal
of the charge is not error under Rule 14, Temp. Ala.R.Cr.P.).

We hold that the charge given in this case did
substantially and fairly state the same rule of law that was stated in
the charge Payne requested. In summary, the trial court's charge
refers to the use of circumstantial evidence in the case; it clearly
indicates that the State must prove its case beyond a reasonable doubt;
and, finally, it states that the defendant cannot be convicted if the
evidence leads to an inference consistent with innocence.

3. Was Payne denied his right to a speedy trial?

Payne argues that he was denied his Sixth Amendment
right to a speedy trial because there was a 25-month delay between his
indictment and his trial. Payne contends that the Court of Criminal
Appeals erred in its application of the following factors set out in
Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972),
for a court to consider when analyzing a speedy-trial claim: (1) the
length of the delay; (2) reasons for the delay; (3) when the defendant
asserted his right to a speedy trial; and (4) any prejudice that the
defendant has suffered because of the delay.

Payne argues that the court erred in weighing the
Barker factors by not including in the “length of the delay” the six
months it took to “find a judge to hear the case.” He contends that
the six months that passed between the retirement of one judge and the
appointment of another should have been weighed against the State.

The procedural history of Payne's case is as
follows: March 25, 1992-Payne was arrested in Dade County, Florida. (C.R.49.)
April 16, 1992-Payne was indicted by a Cullman County grand jury on
three counts of capital murder. (C.R.2.) April 22, 1992-Payne made his
initial appearance in court. (C.R.3-4.) April 29, 1992-Payne moved to
dismiss the indictment. (C.R.17-18.) April 30, 1992-Payne filed 4
motions: (1) a motion to compel the state to elect whether to proceed
on the first, the second, or the third count of the indictment; (2)
another motion to dismiss the indictment; (3) a petition for
psychiatric evaluations to determine his competency at the time of the
offense and his competency to stand trial; and (4) a motion to vacate
the State's discovery order and for a protective order, requesting
that the State be prohibited from taking hair, blood, saliva, and
urine samples. (C.R.20-30.) May 6, 1992-Payne moved for a continuance
on his motion for psychiatric evaluations, which was scheduled to be
heard on May 7, 1992; Payne moved for a change of venue and requested
a hearing on this issue. (C.R.34-35.) May 7, 1992-Payne filed an ex
parte application for investigative expenses, requesting a hearing on
the issue; Payne also moved for permission to file other motions. (C.R.38-48.)
May 8, 1992-Payne moved to suppress his statement and requested a
hearing on this issue. (C.R.49-54.) May 13, 1992-Payne moved to
suppress certain physical evidence and requested a hearing on this
issue. (C. 55-58.) May 14, 1992-Payne moved to continue the trial,
which was set for May 18, 1992. (C.R.59-59A.) June 10, 1992-Payne
moved to continue the the psychiatric evaluation and change of venue
hearings. (C.R.60-61.) July 15, 1992-Payne again moved to continue the
hearings on the psychiatric evaluation and change of venue. (C.R.62-63.)
September 3, 1992-The hearing on Payne's motion for psychiatric
evaluation and change of venue was held. The trial court ordered
psychiatric evaluations for Payne and denied the change of venue
motion. (Supp.vol.3, 1-84.) (C.R.64-65.) October 26, 1992-The trial
court found Payne competent to stand trial and set trial for December
14, 1992. (C.R.66-67.) November 30, 1992-Payne requested to
individually voir dire the jury and to sequester those who had been
questioned individually from those who had not. (C.R.68-80.) December
1, 1992-The State moved to continue the trial, which was set for
December 14, 1992, because the blood-type analysis had not been
completed. (C.R.81-82.) December 17, 1992-Payne moved for a pretrial
determination of the admissibility of certain evidence, specifically
requesting a hearing 60 days before trial. (C.R.85-86.) December 18,
1992-The trial court set a hearing for a pretrial determination of the
admissibility of evidence, for January 7, 1993. (C.R.210.) January 7,
1993-At the hearing, the trial court ordered the State and Payne to
file briefs on the legal issues presented regarding the admissibility
of certain evidence. (Supp.vol.4, pp. 1-205.) (C.R.208.) January 20,
1993-The State moved to extend the time for filing the requested
briefs. (C.R.87-88.) January 21, 1993-The trial court extended the
time to file briefs, to February 10, 1993. (C.R.208.) February 5,
1993-Payne moved to further extend the time for filing briefs; the
trial court extended the time to March 10, 1993. (C.R.89-90, 208.)
March 19, 1993-The State moved to continue the trial, which had been
set for March 22, 1993, because DNA testing had not been completed. (C.R.90-91.)
March 25, 1993-The trial court denied Payne's motion to suppress his
statement and certain evidence seized from his automobile. (C.R.97-98.)
April 10, 1993-Payne petitioned the Court of Criminal Appeals for a
writ of mandamus, challenging the trial court's denial of his motion
to suppress his statement and evidence seized from his car. (C.R.208.)
April 12, 1993-Payne filed an ex parte request for investigative
expenses. (C.R.91-97.) April 13, 1993-The trial court granted Payne's
request for investigative expenses. (C.R.211.) April 23, 1993-The
Court of Criminal Appeals denied Payne's petition for the writ of
mandamus. Ex parte Payne, 626 So.2d 651 (Ala.Crim.App.1993); Payne
petitioned this Court for a writ of mandamus. (C.R.97-98.) May 14,
1993-Payne moved for a continuance pending this Court's ruling on the
mandamus petition. (C.R.99-100.) June 9, 1993-the trial court
continued the trial, pending this Court's review of Payne's petition
and pending resolution of Payne's motion concerning out-of-state
witnesses. (C.R.101-02.) June 14, 1993-This Court denied the writ of
mandamus. (C.R.103.) August 30, 1993-Payne moved for production of
witnesses, an incarcerated person; he also petitioned for
certification of the materiality of out-of-state witnesses. (C.R.103-108.)
September 10, 1993-The presiding judge in the circuit denied both of
the motions filed on August 30, 1993, noting that the trial date had
not been set, because of the retirement of Judge Riley. (C.R.108-09,
211.) November 10, 1993-Payne moved for a speedy trial. (C.R.112.)
November 12, 1993-Payne again moved for production of witnesses and a
certification of materiality of out-of-state witnesses. (C.R.113-19,
122.) January 12, 1994-Newly appointed Circuit Judge Frank Brunner
recused because he had previously been appointed guardian ad litem for
the victim's minor daughter. (C.R.211.) January 14, 1994-Payne again
moved for a speedy trial. (C.R.124-25.) January 24, 1994-The presiding
circuit judge recused because he had just had surgery and was still
recuperating. (C.R.211.) January 25, 1994-The presiding circuit judge
notified the Chief Justice of this Court of his recusal and requested
that the case be assigned to another circuit judge. (C.R.126.) January
28, 1994-Payne filed a motion for the court to reconsider all
previously filed motions. (C.R.127.) February 3, 1994-This Court
entered an order appointing Judge Robert Austin to hear the case.
Judge Austin set a pretrial conference for February 14, 1994. (C.R.129-130.)
February 14, 1994-Payne made a motion in limine. (C.R.131-34.) March
7, 1994-Payne moved to dismiss the indictment, alleging a failure to
give him a speedy trial. (C.R.136-38.) FN1 FN1. In his motion to
dismiss filed March 7, 1994, Payne claims that he first asserted his
right for a speedy trial in “July 1993.” However, nothing in the
record indicates that to be the case; Payne does not dispute, in his
briefs to this Court, that his first motion for a speedy trial was
filed on September 20, 1993. March 11, 1994-The motion to dismiss was
denied and trial was set for May 23, 1994. (C.R.138-39.) May 3, 1994-Payne
moved for production of witnesses and a certification of the
materiality of an out-of-state witness, for the third time. (C.R.140-143.)
May 23, 1994-The trial began. (R.T. 1.)

The Court of Criminal Appeals held that the delay
of 25 months between indictment and trial was not presumptively
prejudicial, because much of the delay was due to the problem of
finding a judge to hear the case. That court wrote, “This delay is not
attributable to either the prosecution or Payne.” 683 So.2d at 452.
The court reviewed the remaining Barker factors and found no violation
of Payne's right to a speedy trial.

Payne contends that the Court of Criminal Appeals
should have weighed against the State the delay due to the problem of
finding a judge to hear the case. The United States Supreme Court has
written: “A deliberate attempt to delay the trial in order to hamper
the defense should be weighted heavily against the government. A more
neutral reason such as negligence or overcrowded courts should be
weighted less heavily but nevertheless should be considered since the
ultimate responsibility for such circumstances must rest with the
government rather than with the defendant.” Barker, 407 U.S. at 531,
92 S.Ct. at 2192.

We must consider the Barker factors. There were 25
months between indictment and trial. There were several reasons for
the delay of the trial: From Payne's April 16, 1992, indictment to the
first setting of trial-for May 18, 1992-Payne filed at least 9 motions,
including a motion for a continuance. From June 10, 1992, to September
3, 1992, Payne filed several motions, including a motion for a
psychiatric evaluation and for a hearing on that motion. On October 6,
1992, the trial court found Payne competent to stand trial and set
trial for December 14, 1992. On December 1, 1992, the State made its
first motion for a continuance. On December 17, 1992, Payne moved for
a pretrial hearing on whether to suppress certain evidence. The
requested hearing was set for January 7, 1993.

At the hearing, the trial court ordered the parties
to file briefs. Subsequently, both the State and Payne requested
additional time to file their briefs. On March 19, 1993, the State
moved for a continuance because DNA testing was not complete. On March
25, 1993, the trial court denied Payne's motion to suppress. In April
1993, Payne asked for investigative funds, which the trial court
granted. Also in April, Payne petitioned the Court of Criminal Appeals
for a writ of mandamus regarding the suppression issue. The writ was
denied on April 23, 1993. Payne then petitioned this Court for a writ
of mandamus regarding the suppression issue. On May 14, 1993, Payne
moved for a continuance pending this Court's ruling on the mandamus
petition. The trial court granted the continuance on June 9, 1993. On
June 14, 1993, this Court denied the writ.

The delay caused by the retirement of one judge and
the recusal of two others began in September 1993 and ended on
February 3, 1993, when this Court appointed a judge to hear the case.
On September 10, 1993, the presiding circuit judge denied two of
Payne's motions regarding witnesses because the trial judge sitting on
the case had retired. Two months later, on November 10, 1993, Payne
moved for a speedy trial. Until November 1993-19 months after the
indictment-Payne had not asserted his right to a speedy trial. On
November 12, 1993, Payne filed another motion regarding witnesses.

The next action in the case occurred on January 12,
1994, when a new judge was appointed for the circuit in which Payne
had been indicted. That same day, the new judge recused, because of a
conflict of interest arising from the fact that he had been guardian
ad litem for the victim's minor daughter. On January 14, 1994, Payne
again moved for a speedy trial. On January 24, 1994, the presiding
judge in the circuit recused because of health problems. On January
25, 1994, he notified the Chief Justice of his recusal, and on
February 3, 1994, this Court appointed another judge to hear the case.
On that same day, the trial judge set a pretrial hearing for February
14, 1994. On March 7, 1994, Payne filed a motion to dismiss, alleging
a denial of a speedy trial FN2-that motion was denied on March 11,
1994. The trial began on May 23, 1994.

FN2. The Court of Criminal Appeals stated that
Payne filed his third speedy trial motion on February 14, 1994. 683
So.2d at 451. However, the record indicates that it was filed on March
7, 1994, and Paine does not dispute this.

Payne contends that it should be presumed that he
suffered some prejudice by the 25-month delay. He argues that there
was no need for him to present any evidence of prejudice, arguing that
under Barker a showing of prejudice comes from the fact of “pretrial
incarceration” and from witnesses' “loss of memory” occurring because
of the length of time, citing Barker 407 U.S. at 532, 92 S.Ct. at
2193.

Whether a defendant has been denied the
constitutional right to a speedy trial cannot be determined by an
inflexible rule, but must be determined on a case-by-case basis. In
determining that question, a court must weigh the conduct of the
prosecution and the conduct of the defense. Barker, 407 U.S. at 530,
92 S.Ct. at 2191-92.

Looking at the Barker factors and the facts
presented in this case, we cannot say that Payne was denied his right
to a speedy trial. Weighing any presumed prejudice from the 25-month
delay and attributing to the State the 6-month delay caused by the
lack of a trial judge, we must conclude that Payne was not denied a
speedy trial. It is undisputed that Payne did not assert his right to
a speedy trial until 19 months after the indictment had been filed.
The State did not purposefully attempt to delay the trial, and any
delay caused by the lack of a judge should be weighed less heavily
against the State than a purposeful delay, according to Barker.

In weighing any prejudice Payne might have suffered,
we consider the interests the right to a speedy trial was designed to
protect, i.e., preventing oppressive incarceration, minimizing the
defendant's anxiety, and, most important, limiting the possibility
that the defense will be impaired. Barker. Because Payne presented no
specific incidents of prejudice or impairment to his defense, we have
looked at any presumed prejudice to Payne. Although between the
indictment and the trial Payne spent 25 months in jail and certainly
was anxious as to the outcome of his case, we cannot say that this
alone is enough to outweigh the other factors. Payne contends that
witnesses' loss of memory also prejudiced him. However, Payne does not
point to any specific witness who failed to remember the events of the
alleged offense. Even presuming some prejudice based on loss of memory
as loss of memory, given that loss of memory is rarely reflected in
the record, we cannot say that this factor would outweigh the other
factors. We note that the State's case would also be affected by
witnesses' loss of memory occurring because of the delay in trial;
however, this loss of memory can work to the defendant's favor.

We hold that the Court of Criminal Appeals did not
err in determining that Payne was not denied his right to a speedy
trial.

4. Did the trial court commit reversible error
by admitting evidence obtained during what Payne says was an illegal
search of his automobile?

We agree with the reasoning of the Court of
Criminal Appeals on this issue, and we adopt it as our own: “At a
suppression hearing, Cullman County Sheriff's Deputy Mitch Love
testified as follows. On March 23, 1992, he received a number of radio
transmissions regarding a robbery-abduction at West Point Grocery. The
sheriff's deputies were given a description of the suspect, Max Payne:
a white male, driving a light blue Ford Maverick, and carrying a
shotgun. Love drove to Payne's residence. Payne was not there, but his
mother and his sister, Wilma Faye Easterling, were. Love spoke to
Easterling and to Payne's mother. Easterling told Love that when she
was at her house earlier that evening, Payne had arrived with Brown,
bank deposit bags, and a weapon. She further stated that Payne left
her house in the Maverick with the victim. After this conversation,
Love left Payne's house and continued searching for the Maverick. He
found it parked at Easterling's house, and called for assistance. The
automobile windows were down, and Love looked into the automobile with
his flashlight. He observed empty beer cans, shotgun shells on the
floorboard, a sling in the back seat, and keys in the ignition.
Sheriff Laney and Officers Yarbrough, DeMonia, Nichols, and Weston
joined Love at the automobile a few minutes after Love called for
assistance. Sheriff Laney removed the keys from the ignition.

“Sheriff Laney testified as follows. He was
investigating the crime when he heard Love's call. Laney was one of
the first to arrive on the scene with Love. He looked into the
automobile and saw the same things Love testified to seeing. He
removed the keys from the ignition and opened the trunk. The victim's
whereabouts were not known at that time. Laney stated that when he
looked in the trunk, he was looking for the victim.

“Phillip Lambert, chief investigator for the
Cullman County Sheriff's department, testified as follows. Lambert
arrived after the trunk had been searched. He looked into the
automobile and observed the same items Laney and Love testified to
seeing, with the exception of the automobile keys. Lambert then spoke
with Easterling. She told him that the Maverick parked on the property
was the same automobile Payne was driving when he left with Brown. She
also told Lambert that he and the other officers ‘could look in it, do
what [they] wanted to, take it with [them] or anything [they] wanted
to do.’ Lambert then determined that Easterling and her husband were
renting the property upon which the automobile was parked. Ted Manus
obtained Easterling's written consent to search the premises. The
sheriff called for a wrecker, and the Maverick was towed to the
sheriff's department, where it was locked and later searched.

“Generally, a valid warrantless search must be
accompanied by certain circumstances that would render the act of
obtaining a warrant either useless or unreasonable. One such situation
in which a warrant is not required is when exigent circumstances exist
concurrently with probable cause. Land v. State, 678 So.2d 201 (Ala.Cr.App.1995)
(holding that warrantless search of appellant's vehicle was valid
because the police had probable cause to believe that appellant had
committed the crime, and the vehicle's inherent mobility was a
sufficiently exigent circumstance); see also Johnson v. State, 554
P.2d 51 (Okla.Crim.App.1976), cert. denied, 429 U.S. 943, 97 S.Ct.
364, 50 L.Ed.2d 314 (1976) (holding that immediate warrantless search
of the trunk of defendant's automobile was proper, because the police
believed the kidnapped victim was in there and were acting ‘in hopes
of saving a human life’).

“In this case, the police had the following
information before they removed the automobile keys and opened the
trunk: that Brown's grocery store had been robbed by a white male with
a shotgun; that the suspect was driving a light blue Ford Maverick;
that Brown had been abducted; that after the robbery, Payne drove to
Easterling's house in his light blue Ford Maverick; that when he
arrived there, Brown was with him and he had bank deposit bags and a
gun; that Payne left Easterling's house in his Maverick with Brown,
the bank deposit bags, and the gun; that the Maverick was not parked
in front of Easterling's house between 10:00 p.m. and 10:15 p.m., but
that it was parked there at 10:30 p.m. Therefore, the police had
sufficient information to ‘ “warrant a man of reasonable caution in
the belief” ’ that several crimes had been committed, that the
appellant had committed them, and that the vehicle contained evidence
of the crimes. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535,
1543, 75 L.Ed.2d 502, 514 (1983) (quoting Carroll v. United States,
267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555 (1925)).

“Furthermore, in cases involving searches of
automobiles the vehicle's inherent mobility establishes a presumption
of exigent circumstances. Mewbourn v. State, 570 So.2d 805, 810 (Ala.Cr.App.1990)
(‘a vehicle's potential for mobility raises the presumption of exigent
circumstances'). In this case, however, the vehicle's mobility was
accompanied by several additional exigent circumstances. For example,
the Maverick had been returned to Easterling's house less than 30
minutes before Love located it. Love testified that he called for
backup and that the whereabouts of Payne and the victim were unknown
at that time. Laney testified that he looked inside the automobile to
determine whether anyone was hiding in the automobile. Laney further
testified that he removed the keys from the ignition in order to open
the trunk to search for the victim. We conclude that the police had
sufficient probable cause to search the automobile, and that the
concomitant exigent circumstances were overwhelming; therefore, the
warrantless visual search of the interior and the trunk of the
Maverick was valid.

“The Maverick was later towed to the sheriff's
department, where it was thoroughly searched. However, before the
automobile was towed, Easterling gave her express verbal and written
consent to the search. In Johnson v. State, 584 So.2d 881 (Ala.Cr.App.1991),
this court held:

“ ‘ “A defendant has no constitutional right of
privacy where he does not have exclusive possession and control over
the place searched. The person who does have present, exclusive
possession and control over the place in question, or who shares the
premises coequally with the person claiming to be aggrieved, may give
consent to search.” ’

“ Id., at 886 (quoting C. Gamble, McElroy's Alabama
Evidence § 334.01(3)(b) (3d ed.1977). See also Zumbado v. State, 615
So.2d 1223 (Ala.Cr.App.1993) (applying this rule in upholding a
consensual search where the appellant parked his automobile at the
house trailer where he lived with his girlfriend; the girlfriend was
present, but the appellant was not; the girlfriend was apparently in
exclusive control of the premises; and the girlfriend consented to the
search of the automobile).

“In this case, Payne parked his automobile on
property rented by Easterling and her husband. Payne left the windows
of the automobile down and left the keys in the ignition. Therefore,
Payne did not have exclusive control over the automobile when it was
searched. Easterling, in contrast, did have apparent exclusive control
of the property, including the automobile. Accordingly, she was
capable of giving valid consent to the search of the automobile. She
gave her consent; therefore, the warrantless search of the automobile
at the sheriff's office was valid.

“Furthermore, we note that the automobile was in
plain view, and the police had probable cause to believe that the
automobile itself was evidence of the crimes. See Watson v. State, 533
So.2d 737 (Ala.Cr.App.1988) (‘[P]lain view is obtained without any
prior entry or opening of the vehicle .... when the car itself is in
plain view and it is subject to seizure as evidence of a crime....’);
Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).
Therefore, the warrantless seizure of the automobile was proper.”

The judgment of the Court of
Criminal Appeals is affirmed. AFFIRMED.

Payne v. State,
791 So.2d 383 (Ala.Cr.App. 1999). (PCR)

Defendant, whose capital-murder conviction and
death sentence were affirmed by the Court of Criminal Appeals, 683
So.2d 440, and the Alabama Supreme Court, filed postconviction relief
petition. The Cullman Circuit Court, No. CC-92-179.60, Robert E.
Austin, J., dismissed petition, and defendant appealed. The Court of
Criminal Appeals, Fry, J., affirmed in part and remanded with
directions to address allegations of Brady violation and ineffective
assistance of appellate counsel. The Circuit Court filed written
statement of reasons for rejecting claims. On return to remand, the
Court of Criminal Appeals, Fry, J., held that: (1) defendant was not
denied discovery; (2) alleged Brady violation claim failed to meet
requirements of newly discovered; (3) defendant failed to establish
that trial counsel's failure to present expert testimony on
defendant's mental health was outside wide range of reasonable
professional assistance; (4) defendant failed to establish ineffective
assistance of trial counsel based upon counsel's allegedly inadequate
funding; and (5) trial counsel was not ineffective for failing to
present additional mitigation evidence during sentencing phase.
Affirmed in part and remanded with directions. On remand, affirmed.
Certiorari denied, Ala., 791 So.2d 408.

FRY, Judge.

The appellant, Max Landon Payne, appeals from the
denial of his petition for postconviction relief filed pursuant to
Rule 32, Ala.R.Crim.P. In 1994, Payne was convicted of two counts of
intentional murder committed during a kidnapping (§ 13A-5-40(a)(1),
Ala.Code 1975) and one count of intentional murder during a robbery in
the first degree (§ 13A-5-40(a)(2), Ala.Code 1975). In accordance with
§§ 13A-5-45 and -46, a sentencing hearing was held before the jury,
and the jury, by a vote of 11-1, recommended a sentence of death.
After performing an independent weighing of the aggravating and
mitigating circumstances and considering the jury's recommendation,
the trial court sentenced Payne to death.

On February 24, 1998, Payne, through counsel, filed
a Rule 32 petition, raising numerous claims. On August 10, 1998, the
circuit court dismissed Payne's petition, finding the majority of
Payne's claims precluded. As for Payne's claim of ineffective
assistance of appellate counsel and newly discovered evidence, the
trial court “granted leave to amend the petition and/or refile on
issues not adjudged as being precluded.” (C.R.64.) On September 21,
1998, before filing an amended petition, Payne filed his notice of
appeal, establishing this court's jurisdiction in this matter. He then
filed an amended petition. We affirm the trial court's order in part
and remand the case for further proceedings.

The state's evidence at the 1994 trial tended to
show the following. On March 23, 1992, Braxton Brown, the owner of
West Point Grocery, was robbed, abducted, and shot twice in the face.
Braxton died as a result of the shotgun wounds. Testimony indicated
that the robbery occurred around 8:33 p.m. on March 23, 1992. Two
witnesses testified that they saw Payne at the West Point Grocery at
8:30 p.m. Payne's sister and his girlfriend testified that they saw
Payne and Brown together later that evening and that they had with
them three bank deposit bags and two cartons of Marlboro cigarettes.
Testimony further indicated that Payne's girlfriend tried to dissuade
Payne from robbing and kidnapping Brown. When Payne was arrested, law
enforcement officers found various items belonging to West Point
Grocery and to Braxton Brown in Payne's duffel bag.FN1

On appeal, Payne contends that the trial court
erred in ruling that his claims were precluded. Specifically, he
argues that his claims of ineffective assistance of trial counsel and
newly discovered evidence-of a Brady violation FN2-were not precluded.
He further maintains that the trial court erred in denying his
petition without conducting an evidentiary hearing. FN2. Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Payne contends that “the trial court
incorrectly ruled that [his] claims of ineffective assistance of trial
counsel were precluded because they were not raised on direct appeal.”
(Appellant's brief at p. 1. )

Additionally, the following claims in Payne's
petition are procedurally barred under Rule 32.2(a)(2) and (5),
Ala.R.Crim.P., because they were raised and addressed at trial and
could have been, but were not, raised on appeal:

1. Payne's claim that “the trial court violated his
rights to due process and effective assistance of counsel when it
denied his motion to have expert psychological and psychiatric
assistance with the evaluation, preparation, and presentation of his
defense.”

2. Payne's claim that because he “was tried in
Cullman County, where the killing at issue occurred and where pretrial
publicity made it impossible to select a fair and impartial jury, [he]
was deprived of a fair trial by an impartial jury in violation of the
Constitutions and laws of the United States and the State of Alabama.”

3. Payne's claim that “improper judicial rulings
and conduct before, during and after the guilt and penalty phase of
his trial denied him due process, a fair trial, and a reliable and
fair sentencing procedure in violation of the constitutions and laws
of the State of Alabama (U.S.C.A., Amendments 5, 6, 8 and 14).”

4. Payne's claim that because “his appointed
counsel was the brother-in-law of the district attorney he was denied
due process and his right to effective and zealous representation by
counsel (U.S.C.A., Amendments 5, 6, 8 and 14).”

The following claims in Payne's petition are
procedurally barred under Rule 32.2(a)(2) and (4), Ala.R.Crim.P.,
because they were raised and addressed at trial and/or on appeal:

Payne's claim that “because the judge and jury did
not hear crucial mitigating evidence and because of numerous errors
throughout his trial, [he] was deprived of a fair and reliable capital
sentencing process in violation of the Constitutions and laws of the
United States and the State of Alabama.” See Payne, 683 So.2d at
456-58.

2. Payne's claim that “it would be a gross
miscarriage of justice to allow [his] current conviction and sentence
of death to stand because [he] is actually innocent of the capital
offense for which he was convicted.” See Payne, 683 So.2d at 456-58.

3. Payne's claim that “the trial court denied [him]
due process by duplicating the finding of conviction as the sole
factor of aggravation, and because the aggravator was not any narrower
than the underlying crime (U.S.C.A., Amendments 5, 8, and 14).” See
Payne, 683 So.2d at 456-58.

The following claims in Payne's petition are
procedurally barred under Rule 32.2(a)(3) and (5), Ala.R.Crim.P.,
because they could have been, but were not, raised and addressed at
trial or on appeal:

1. Payne's claim that he “was denied effective
assistance of counsel due to trial counsel's failure to obtain and
utilize competent psychiatric and psychological assistance in the
evaluation, preparation, and presentation of [his] defense.”

2. Payne's claim that the “trial court's lengthy
oral instruction on the definition of reasonable doubt standard was
inconsistent, diluted the reasonable doubt standard, and permitted the
jury to substitute a moral certainty and fair-minded person standard
for a juror's individual evidentiary standard of beyond a reasonable
doubt, all in violation of [his] rights to due process of law and his
entitlement to effective assistance of counsel.”

3. Payne's claim that he “was denied effective
assistance of counsel due to his trial attorney's failure to present
at sentencing persuasive and available mitigation evidence, denying [him]
a fair and reliable sentencing process and violating his rights under
the Constitutions and laws of the United States and State of Alabama.”

4. Payne's claim that the trial court denied him
due process by failing to find as a mitigating factor Payne's lack of
a significant criminal history.

5. Payne's claim that “the trial court violated [his]
due process rights by failing to find as a factor of statutory and/or
nonstatutory mitigation that James Beavers admitted the commission of
the killing and [that] Mr. Payne's role in the capital offense was
minor.”

6. Payne's claim that he “was denied due process in
the sentencing phase when the prosecutor argued future dangerousness
as a reason to impose the death penalty, thereby presenting to the
jury uncharged factors of aggravation that exceeded the scope of the
proper factor of aggravation.”

7. Payne's claim that he “was denied his right to a
fair, impartial, and representative jury as guaranteed by the United
States Constitution and the laws and Constitution of the State of
Alabama [by the following:]

“i. The judge's secretary's dismissal of potential
jurors from the jury pool denied [him] rights to due process of law,
trial by an impartial jury, and effective assistance of counsel.

“ii. [He] was denied due process, effective
assistance of counsel, and a trial by an impartial jury when two
jurors overheard extrajudicial comments made by the victim's family in
a courthouse bathroom to the effect that: ‘I can't believe he colored
his hair before trial.’

“iii. [He] was denied his right to due process and
a jury trial when part of the impaneling of the jury was conducted in
his absence.

“iv. The trial judge failed to excuse for cause
several potential jurors and improperly excused other members of the
venire.

“v. The method of selecting the grand jury and jury
venire in Cullman County deprived [him] of his right to a trial by a
jury of his peers.”

8. Payne's claim that the “trial court's
fundamentally flawed instruction to the jury on the theory of
accomplice liability resulted in extreme prejudice to [his] due
process rights and deprived [him] of effective assistance of counsel (U.S.C.A.,
Amendments 5, 6 and 14).”

9. Payne's claim that he “was denied due process
because the intent instructions failed to distinguish between the
intents required for various forms of homicide and the instructions
created a mandatory presumption that any act which causes death
demonstrates the intent to kill (U.S.C.A., Amendments 5, 6, 8, and
14).

“i. The trial court denied [him] equal protection
and due process by not distinguishing the intent required for capital
murder, the intent required for noncapital murder, and the
recklessness required for manslaughter, thereby denying a meaningful
jury determination of the lesser included offense of simple murder.

“ii. The Alabama homicide statutes create a
mandatory or burden-shifting presumption that the intent to kill is
the only intentional act for an act which causes death (U.S.C.A.,
Amendments 5, 6, and 14).

“iii. The trial court denied [him]
due process by not adequately and properly presenting to the jury the
lesser-included offense of felony-murder, and the essential elements
of that lesser-included offense.”

10. Payne's claim that “the trial court's
instruction on mitigating circumstances violated due process because
it created a substantial possibility that the jury interpreted the
instruction to prevent [it] from considering a mitigating circumstance
unless [it] unanimously agreed on that circumstance (U.S.C.A.,
Amendments 5, 6, 8, and 14).”

11. Payne's claim that “by providing a judicial
officer with the ultimate decision of life and death, the State of
Alabama deprived [him] of due process and his right to trial by jury (U.S.C.A.,
Amendments 5, 6 and 14).”

12. Payne's claim that he “was denied due process
and the effective assistance of counsel when the sentencing court
rested its decision in part on erroneous, and or inaccurate,
incomplete information in the PSI [pre-sentence investigation report]
which [he] had no meaningful opportunity to explain or deny (U.S.C.A.,
Amendments 5, 6, and 14).”

13. Payne's claim that “Alabama's judicially
ordered electrocution of [him] at a given specific date and time,
constitutes unusual and cruel punishment, and a denial of equal
protection, and due process of law under the constitutions and laws of
the United States and State of Alabama (U.S.C.A., Amendments 5, 8, 9
and 14).”

14. Payne's claim that “the trial court's
instructions on the weighing of aggravating and mitigating
circumstances and the role of the jury in the sentencing process
denied [him] due process of law and a fair and reliable capital
sentencing process, in violation of the constitution and laws of the
United States and the State of Alabama (U.S.C.A., Amendments 5, 8 and
14).”

15. Payne's claim that he “was denied effective
assistance of counsel at both the guilt and penalty phase of the trial
proceedings, in violation of the constitutions and laws of the United
States and State of Alabama (U.S.C.A., Amendments 5, 6, 8 and 14).

“i. [He] was denied effective assistance of counsel
when at the conclusion of the guilt phase of trial, counsel failed to
object to improper statements by the prosecutor in the argument before
the jury.

“ii. [He] was denied effective assistance of
counsel at sentencing hearing before the jury when trial counsel
failed to object to improper statements by the prosecutor in the
argument before the sentencing jury (U.S.C.A., Amendments 6 and 14).

“iii. [He] was denied effective assistance of
counsel when trial counsel's main theory of defense was that [he] was
nothing more than an accomplice and that as an accomplice [he] could
not be guilty of capital murder.

“v. [He] was denied effective assistance of counsel
when trial counsel failed to renew the motion for a court-ordered
mental exam after the return of the guilty verdict but prior to the
sentencing phase.

“vi. [He] was generally denied the effective
assistance of counsel at the guilt phase of his trial in violation of
the Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution and the Constitution and laws of the State of Alabama.

“vii. [He] was generally denied the effective
assistance of counsel at the penalty phase of his trial in violation
of his right to a fair and reliable capital sentencing process and the
Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution and the Constitution and laws of the State of Alabama.” (C.R.307-76.)

II.

Payne contends that we should remand this cause to
the circuit court for an evidentiary hearing on his claims of newly
discovered evidence-a Brady violation-and of ineffective assistance of
appellate counsel. The state agrees.FN3 Based on the pleadings before
us, we are unable to determine whether Payne's claim of newly
discovered evidence was properly precluded. Therefore, we must remand
this cause for further consideration. Additionally, Payne's claims
that appellate counsel was ineffective may also, if true, be
meritorious. “ ‘When a petition contains matter which, if true, would
entitle the petitioner to relief, an evidentiary hearing must be held.’
” Bryant v. State, 739 So.2d at 1140, quoting Smith v. State, 581
So.2d 1283, 1284 (Ala.Cr.App.1991), citing Ex parte Boatwright, 471
So.2d 1257, 1258 (Ala.1985). FN3. During oral argument the state
requested that we remand this cause to the circuit court for an
evidentiary hearing on the claims of newly discovered evidence and
ineffective assistance of appellate counsel.

Accordingly, this case is remanded to the circuit
court for an evidentiary hearing pursuant to Rule 32.9, Ala.R.Crim.P.
to address Payne's claims of ineffective assistance of appellate
counsel and newly discovered evidence-the alleged Brady violation. The
trial court is directed to “make specific findings of fact relating to
each material issue of fact presented,” as required by Rule 32.9(d),
Ala.R.Crim.P. Due return should be filed in this court no later than
56 days from the date of this opinion and shall include the trial
court's written statement of the court's findings and the transcript
and/or affidavits, if any, from the proceeding.

FN2. In oral argument before this Court, Payne and
the state requested that we remand this cause to the circuit court for
a hearing on Payne's claims of ineffective assistance of appellate
counsel. Specifically, Payne argued, and the state agreed, that he had
presented facially meritorious claims of appellate counsel's failure
to present on direct appeal claims of ineffective assistance of trial
counsel.

The circuit court has complied with our directions
and on return to remand has filed an order containing a written
statement of its reasons for rejecting Payne's allegations of a Brady
violation and of ineffective assistance of appellate counsel.

Initially, we note that the circuit court denied
Payne's Rule 32 petition on August 10, 1998, stating: “[I]t is,
therefore, Ordered, Adjudged and Decreed that the petition filed
herein is denied.” (C.R.64.) Although the order seems to grant Payne
leave “to amend the petition and/or refile on issues not adjudged as
being precluded,” we conclude that because the court denied the
petition and because Payne filed his notice of appeal on September 21,
1998, removing jurisdiction from the circuit court, Payne was
foreclosed from amending the petition. See Rule 32.7(b), Ala.R.Crim.P.
(“Amendments to pleadings may be permitted at any stage of the
proceedings prior to entry of judgment” (emphasis added)).

Although this Court dismissed Payne's appeal from
this order on September 28, 1998, 741 So.2d 498 (Ala.Cr.App.1998)(table),
this Court ordered the appeal to be reinstated on October 26, 1998.
Payne filed an amended Rule 32 petition in the circuit court on
January 13, 1999. That court, however, did not have jurisdiction
because Payne's appeal was pending; therefore, that filing, as well as
all subsequent filings, were void. We remanded this cause on July 9,
1999. The record on return to remand indicates that at the evidentiary
hearing, the circuit court, upon agreement of both parties, permitted
Payne's counsel to present evidence with regard to claims made in the
amended petition.

The general rule is that jurisdiction of one case
cannot be in two courts at the same time. McKinney v. State, 549 So.2d
166 (Ala.Cr.App.1989). Jurisdiction of this cause at the time Payne
filed his amended Rule 32 petition rested with this Court. Therefore,
the matters addressed with regard to the amended Rule 32 petition
cannot be considered by this Court because they were never properly
before the circuit court.

Furthermore, even if we could consider the claims
raised in the amended Rule 32 petition, we have no means of adequately
reviewing those contentions because a copy of the amended Rule 32
petition, which the circuit court mentioned at the evidentiary hearing,
was not made a part of the record on return to remand. Thus, our
review is limited to Payne's claims of ineffective assistance of
appellate counsel and the alleged Brady violation, as pleaded in the
original petition filed on February 24, 1998.

I.

Because of the complicated history of the
proceedings and rulings regarding this Rule 32 petition, we feel
compelled to address the numerous complaints by Payne at the
evidentiary hearing on remand regarding his inability to conduct
discovery.

Payne filed his petition on February 24, 1998. On
May 13, 1998, Payne filed a motion for discovery of “institutional
records” and files, and a motion for discovery of prosecution files
and records. Although these motions essentially list the information
sought and do not offer any good cause as to why the discovery was
necessary or exactly what Payne believed the information he sought to
discover would reveal, the circuit court granted Payne's motions on
May 22, 1998. When the circuit court denied Payne's petition on August
10, 1998, it vacated these discovery orders. There is no indication in
the record, and Payne has made no representation, that from the time
the circuit court ordered discovery (May 22) until the time that it
vacated the orders (August 10) Payne made any effort to obtain the
information he had requested. We do not believe that the time to begin
discovery is after the date set for the hearing to which the discovery
items are directed; therefore, we question Payne's diligence in
conducting discovery.

Payne appealed the circuit court's denial of
postconviction relief and this Court remanded the cause for an
evidentiary hearing on July 9, 1999. This Court ordered that due
return of the cause be filed within 56 days of issuance of its opinion.
See Payne v. State, 791 So.2d at 393. On July 21, 1999, the circuit
court set the hearing for August 20, 1999, but the hearing was
continued until August 27, 1999. Although Payne filed an application
for rehearing with this Court on July 23, 1999, filed an application
on August 2, 1999, requesting more time for the evidentiary hearing to
be held, and filed a supplemental motion for more time on August 10,
1999, Payne did not file a motion for discovery with the circuit court.
We note that although in his application for rehearing and his motions
to this Court, Payne represented that as of the dates on the filings,
he had been “unable to conduct basic discovery, take depositions,
review defense counsel's trial and appellate file, or review of any
portion of the State's trial file,” Payne made no efforts to obtain
the discovery other than the original request he made on May 13, 1998.

On August 16, 1999-four days before the original
evidentiary date scheduled for the hearing and after representations
about discovery had been made to this Court-Payne filed a motion for
discovery, while this case was on remand in the circuit court. In
light of Payne's lack of diligence in conducting discovery, we
seriously question the timeliness of Payne's discovery request and his
efforts to conduct discovery while his case was on remand. If Payne
had moved the circuit court for discovery when this Court remanded the
case, he could have been conducting discovery from July 9.

It does appear from the record that Payne's counsel
made efforts to obtain the prosecutor's file a week before the hearing.
However, there was some confusion, and the file was not released until
just before the hearing. The record further indicates that when the
state realized the problem it tried to make arrangements for Payne's
counsel to review the file, but Payne's counsel, who was from Iowa,
had already left town. Additionally, we note that while hearing
argument from Payne's counsel about his not having received a report
from Dr. Lawrence Maier,FN3 the circuit court elicited an admission
from Payne's counsel that he had not requested that a subpoena be
issued to Taylor Hardin Medical Unit for Payne's medical records,
which would have included a copy of Dr. Maier's report. Thus, while it
appears from the record that Payne had time, which we acknowledge may
have been limited, during which he could have conducted discovery,
Payne did not make a good faith effort to do so.

Furthermore, as did the circuit court, we reject
the following argument by Payne: “We have made diligent efforts to try
to obtain discovery in this matter. I would also note that any delay
in terms of filing a discovery motion after remand, was based on our
understanding that the Alabama Supreme Court was preparing on the case
of Ex parte Land. It would be thought that case would be determined to
determine whether or not Payne had a right to discovery and provide
guidance to this Court as to whether or not Mr. Payne was entitled to
discovery. As soon as that decision came down, we proceeded to file a
motion for discovery.” (R. 24-25.)

While we believe that it was serendipitous that the
Supreme Court released Ex parte Land, [Ms. 1971816, August 6,
1999],FN* in August, Payne's efforts to conduct discovery were at most
minimal. Unlike the circumstances in Land, where the circuit court had
denied discovery, the circuit court here granted Payne broad discovery
from an extremely general motion. The court's orders granting
discovery were effective for over two months before they were vacated.
Payne, however, did not take advantage of the circuit court's order
and made little, if any, effort to pursue discovery during the two
months before the circuit court's denied his petition and vacated the
discovery orders or while the case was pending on remand in the
circuit court. Furthermore, because Payne did have access to the
prosecutor's file, and his jail records, as well as some of his
institutional records even though his time for review was limited, we
conclude that Payne was not denied discovery.

FN* Note from the reporter of
decisions: On June 2, 2000, on application for rehearing, the Supreme
Court withdrew its August 6, 1999, opinion in Ex parte Land and
substituted another one. The August 6, 1999, opinion carried the
judgment line “PETITION GRANTED; WRIT ISSUED.” The June 2, 2000,
opinion carried the judgment line “OPINION OF AUGUST 6, 1999,
WITHDRAWN; OPINION SUBSTITUTED; [REHEARING] APPLICATION GRANTED;
PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.” See 775
So.2d 847. Finally, Payne claims that the circuit court erred in
denying his motion for funds for a mental health expert. We have
previously rejected a similar argument. See Ford v. State, 630 So.2d
111 (Ala.Cr.App.1991), aff'd. 630 So.2d 113 (Ala.1993), cert. denied,
511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994).

II.

“When reviewing a trial court's ruling on a
postconviction petition, this Court must determine whether the trial
court abused its discretion. Jones v. State, 724 So.2d 75 (Ala.Cr.App.1998);
Elliott v. State, 601 So.2d 1118 (Ala.Cr.App.1992).” Brown v. State, [Ms.
CR-98-0343, October 1, 1999] --- So.2d ---- (Ala.Cr.App.1999).
Moreover, it is well settled that “[i]f the circuit judge has personal
knowledge of the facts underlying the allegations in the [Rule 32]
petition, he may deny the petition without further proceedings so long
as he states the reasons for the denial in a written order.” Sheats v.
State, 556 So.2d 1094, 1095 (Ala.Cr.App.1989). The judge in this Rule
32 proceeding, Judge Robert Austin, also presided over Payne's trial.
We recognize that Judge Austin was in a much better position than this
Court to consider Payne's claims because of his personal knowledge of
the facts surrounding Payne's allegations. Brown v. State, supra.

III.

On appeal from his Rule 32 petition, Payne alleged
that a Brady violation occurred when “the State of Alabama
specifically contacted a key witness, [Ricky Smith] prior to trial,
causing [Smith] to change his testimony and through improper
interference to testify untruthfully.” (Payne's brief to this Court at
p. 5.)

“ ‘ “In order to establish a Brady violation,
appellant must prove: ‘(1) The prosecution's suppression of evidence;
(2) The favorable character of the suppressed evidence for the defense;
(3) The materiality of the suppressed evidence.’ Knight v. State, 478
So.2d 332, 335 (Ala.Cr.App.1985).... “ ‘ “[E]vidence is material only
if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different. A ‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.” ' “ ‘... “The concept of
‘suppression’ implies that the Government has information in its
possession of which the defendant lacks knowledge and which the
defendant would benefit from knowing.” ' ” Davis v. State, 720 So.2d
1006, 1026-27 (Ala.Cr.App.1998), cert. denied, 525 U.S. 1149, 119 S.Ct.
1049, 143 L.Ed.2d 55 (1999). (Citations omitted.)

Because this Brady claim was first presented in a
Rule 32 petition, Payne can obtain relief only if it involves “newly
discovered evidence.” Newly discovered evidence is defined under Rule
32.1, Ala.R.Crim.P., as follows: “Subject to the limitations of Rule
32.2, any defendant who has been convicted of a criminal offense may
institute a proceeding in the court of original conviction to secure
appropriate relief on the ground that: “.... “(e) Newly discovered
material facts exist which require that the conviction or sentence be
vacated by the court, because: “(1) The facts relied upon were not
known by petitioner or petitioner's counsel at the time of trial or
sentencing or in time to file a post-trial motion pursuant to Rule 24,
or in time to be included in any previous collateral proceeding and
could not have been discovered by any of those times through the
exercise of reasonable diligence; “(2) The facts are not merely
cumulative to other facts that were known; “(3) The facts do not
merely amount to impeachment evidence; “(4) If the facts had been
known at the time of trial or of sentencing, the result probably would
have been different; and “(5) The facts establish that petitioner is
innocent of the crime for which petitioner was convicted or should not
have received the sentence that petitioner received.” Rule 32.1(e),
Ala.R.Crim.P. We note that because of the conjunctive “and” between
(4) and (5), Payne must meet all five prerequisites of Rule 32.1(e),
Ala.R.Crim.P., in order to prevail. Cf. Brown v. State, supra.

The circuit court, in its order on return to remand,
made the following findings with regard to this claim: “The ‘newly
discovered evidence’ and Brady material [are] actually an old story
wrapped in a new cover. Petitioner claims that Mr. Ricky Smith, ex-brother-in-law,
who testified at trial, was promised help in a divorce case by the
District Attorney if he would testify falsely at trial. However, Mr.
Smith's actual testimony was that while being interviewed by the
District Attorney prior to Payne's trial, when Smith attempted to
discuss the divorce case the response by the D.A. was that ‘he
couldn't get involved in that.’ The D.A. further volunteered ‘but that
after the trial was over, if I would come see him, he would help me
get counsel.’

“Mr. Smith's sole purpose at this hearing is to
convince the Court that he is a person who gives perjured testimony
for small, even insignificant favors, such as helping to locate
suitable counsel in a divorce action. Even should the court choose to
believe such a confessed liar, Smith's account of the exchange appears
to be little more than a public official attempting to fend off the
attempts by an unsavory individual to solicit special treatment. Even
Smith admits that he was told that the District Attorney ‘could not
get involved with that.’ But when such testimony is considered in
contrast with that of the District Attorney who flatly denies making
any promises in exchange for testimony, the Court does not find the
testimony of Ricky Smith to be credible or worthy of belief.

“It is important to note that at trial the State
rested without the District Attorney calling Ricky Smith as a witness.
In fact, at trial, Smith was initially called by the defense as a
witness and at that time Smith claimed it was not the District
Attorney, but rather the defendant's family that was threatening him
concerning his testimony. The nature of Smith's contradictory
testimony and tendency to disregard the truth was given full airing in
front of the jury when investigator NeSmith testified for the
defendant that Smith had given a contradictory version of what
happened than the version he testified to in Court. The Court finds
all of the above constitutes neither newly discovered evidence or any
violation of Brady v. Maryland.” (C.R. on remand 194-95.)

The circuit court's findings in its order are
supported by the record and are sufficient to support its denial of
relief on this allegation. Payne failed to establish that the evidence
was newly discovered. Specifically, Payne failed to establish that the
facts relied upon were not cumulative to other facts known, that the
facts did not amount to impeachment evidence, that if the facts had
been known at trial the result would probably have been different, and
that the facts establish Payne's innocence. Rule 32.1(e), Ala.R.Crim.P.
Therefore, we conclude that Payne's alleged Brady claim has failed to
meet the requirements of newly discovered evidence and that Payne was
not entitled to relief with regard to this claim.

IV.

In his Rule 32 petition, Payne raised a general
allegation that his appellate counsel was ineffective. (C.R.359-60.)
This claim was completely unsupported by a statement of specific facts.
It therefore failed to meet the specificity requirements of Rule
32.6(b), Ala.R.Crim.P. Furthermore, because of the conclusory nature
of Payne's general allegation in his petition, Payne failed to meet
his burden under Rule 32.3, Ala.R.Crim.P., of pleading and proving by
a preponderance of the evidence facts necessary to entitle him to
relief.

In his petition, Payne did, however, specifically
plead (within other claims) the following allegations of ineffective
assistance of appellate counsel: 1. That appellate counsel failed to
argue on appeal that trial counsel was ineffective for failing to
“obtain and utilize competent psychiatric and psychological assistance”
when presenting his defense (C.R.313-15); 2. That appellate counsel
was ineffective because he did not argue on appeal that the trial
court had erred in refusing to instruct the jury on the lesser-included
offense of felony murder (C.R.339-40); 3. That appellate counsel was
ineffective for not challenging the accuracy of the presentence
investigation report (C.R.354); and 4. That appellate counsel was
ineffective for failing to raise the following ineffective-assistance-of-trial-counsel
claims on direct appeal: a. Trial counsel's failure to object to
improper statements allegedly made by the prosecutor during argument
in the guilt phase and sentencing phase of his trial (C.R.366); b.
Trial counsel's failure to establish an adequate defense that he was
not guilty of capital murder (C.R.369); c. Trial counsel's failure to
“contest or cross-examine the state's expert witnesses or present
expert testimony on [his] behalf (C.R.370); d. Trial counsel's failure
to “renew the motion for a court-ordered mental exam after the return
of the guilty verdict but prior to the sentencing phase (C.R.370); e.
Trial counsel's failure to provide adequate representation due to
inadequate funding (C.R.371); and f. Trial counsel's failure to
investigate and to present adequate mitigation evidence during the
sentencing phase of his trial (C.R.372).

Because it appears that Payne did not present
evidence at the evidentiary hearing with regard to claims 2, 3, 4.a,
4.b, 4.c, and 4.d, we conclude that he has abandoned these claims and
we will not review them. Cf. Brownlee v. State, 666 So.2d 91, 93 (Ala.Cr.App.1995).
Moreover, even if we were to attempt to review these claims, we would
conclude that Payne has failed to prove by a preponderance of the
evidence that appellate counsel's performance was deficient. Rule
32.3, Ala.R.Crim.P.

Payne's claims of ineffective assistance of
appellate counsel depend on whether Payne proves that appellate
counsel failed to present on direct appeal a claim that would have
entitled him to relief. Thus, in order to obtain relief, Payne must
establish that his claims of ineffective assistance of trial counsel
are meritorious and that, if they had been raised on direct appeal,
the outcome of his appeal would have been different. Bryant v. State,
739 So.2d 1138 (Ala.Cr.App.1998). “To prevail on a claim of
ineffective assistance of counsel, a defendant must show that his
counsel's performance was deficient and that he was prejudiced by that
deficient performance. Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). This court must avoid using the
benefit of hindsight and must evaluate the counsel's conduct at the
time of its occurrence. Ex parte Lawley, 512 So.2d 1370 (Ala.1987).
‘When this court is reviewing a claim of ineffective assistance of
counsel, we indulge a strong presumption that counsel's conduct was
appropriate and reasonable. Luke v. State, 484 So.2d 531, 534 (Ala.Cr.App.1985).”
Hallford v. State, 629 So.2d 6, 9 (Ala.Cr.App.1992).

“ ‘Judicial scrutiny of counsel's performance must
be highly deferential. It is all too tempting for a defendant to
second-guess counsel's assistance after conviction or adverse sentence,
and it is all too easy for a court, examining counsel's defense after
it has proved unsuccessful, to conclude that a particular act, or
omission of counsel was unreasonable. A fair assessment of attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action “might be considered sound trial strategy.” There are countless
ways to provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in the
same way.’ “ Strickland, 466 U.S. at 689, 104 S.Ct. at 2065-66. (Citations
omitted.) Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987). ‘Counsel's
conduct must be considered within the context of the facts of the
particular case and as of the time of the alleged misconduct.’ Ex
parte Baldwin, 456 So.2d 129, 134 (Ala.1984), aff'd, 472 U.S. 372, 105
S.Ct. 2727, 86 L.Ed.2d 300 (1985).” State v. Tarver, 629 So.2d 14, 17
(Ala.Cr.App.1993).

With regard to Payne's claim that his appellate
counsel failed to argue on appeal that trial counsel was ineffective
for failing to “obtain and utilize competent psychiatric and
psychological assistance” during his trial, the circuit court made the
following findings of fact: “4. Prior to trial, based upon motion of
trial counsel, a psychiatric exam was ordered by the Court to
determine the defendant's competency to stand trial and his mental
state at the time of the offense. An extensive evaluation was
performed by Dr. Maier, an independent expert hired by the Court. The
report indicated that petitioner was drinking heavily at the time of
the offense, noted the mental anxiety of the defendant prior to trial,
considered the medications that the defendant was taking to deal with
depression, and further considered the defendant's history of alcohol
abuse. The expert evaluation offered no evidence of mental disease or
defect or diminished capacity of the defendant.

“5. Pretrial investigation was made of a Dr.
Larimore concerning a claim by petitioner that he had suffered head
trauma in an automobile accident. Dr. Larimore's deposition was taken.
In addition, investigation was made of a Dr. Coleman at Woodland
Community Hospital. All of this information was made available to the
jury in this cause. Depositions of Dr. Larimore and Dr. Coleman were
played to the jury.” (C.R. on remand 192.)

The circuit court's findings of fact are supported
by the record. Additionally, we note that Payne's trial counsel,
Gregory A. Nichols, testified that at the time he requested a mental
evaluation for Payne he believed that Payne was competent to stand
trial. Recognizing, however, that Payne had had an unusual childhood
and that there were perhaps underlying mental problems, he made the
request to determine their influence on his adult behavior. Payne was
evaluated by a licensed mental health expert. None of the expert's
opinions included a finding that Payne, as he argued in his Rule 32
hearing, suffered extreme mental and emotional duress at the time of
the offense or that he was incapable of appreciating the criminality
of his conduct. Thus, Payne has not shown that his trial counsel's
failure to present expert testimony on his mental health was outside
“the wide range of reasonable professional assistance.” Strickland v.
Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Additionally, Payne had not shown that additional testimony about his
mental health would have changed the outcome of his trial.

“ ‘A distinction must be made between a failure to
investigate the mental history of an accused and the rejection of
insanity as a defense after proper investigation. “An attorney with
considerable experience in criminal matters and, therefore, in dealing
with a wide range of people ... may be presumed to have some ability
to evaluate the mental capacity of his client.” United States ex rel.
Rivera v. Franzen, 594 F.Supp. 198, 202 (N.D.Ill.1984). “As a
practical matter, when deciding whether to present an insanity defense,
the criminal defendant's lawyer is truly the final psychiatrist. It is
not the role of a court to doubt his judgment.... Trial counsel may
not reject the insanity defense “ ‘without pursuing the basic
inquiries necessary to evaluate its merits intelligently.’ ” Rivera,
594 F.Supp. at 203. See also Martin v. Maggio, 711 F.2d 1273, 1280
(5th Cir.1983), rehearing denied, 739 F.2d 184 (5th Cir.), cert.
denied, 469 U.S. 1028, 105 S.Ct. 447, 83 L.Ed.2d 373 (1984); Pickens
v. Lockhart, 714 F.2d 1455, 1467 (8th Cir.1983) (“It is only after a
full investigation of all the mitigating circumstances that counsel
can make an informed, tactical decision about which information would
be the most helpful to the client's case”).' “ Dill v. State, 484
So.2d 491, 498 (Ala.Cr.App.1985) (emphasis original). See also Roy v.
State, 680 So.2d 936 (Ala.Cr.App.1996).”

Because Payne has failed to establish that his
ineffective-assistance-of-trial-counsel claim is meritorious, he has
failed to prove by a preponderance of the evidence that his appellate
counsel was ineffective for failing to present this claim.

We find absolutely no support for Payne's
contention that he was denied effective assistance by his trial
counsel because counsel's funding was inadequate. Payne's trial
counsel stated: “I would have done the same job for [Payne] regardless
of whether I had been well compensated or not.” (R. on return to
remand 84.) Payne did not offer any evidence to refute this statement.
Thus, we reject Payne's claim with regard to his trial counsel's
performance and, accordingly, conclude that Payne's appellate counsel
was not ineffective. See McNair v. State, 706 So.2d 828 (Ala.Cr.App.1997),
cert. denied, 523 U.S. 1064, 118 S.Ct. 1396, 140 L.Ed.2d 654 (1998);
and Hallford v. State, 629 So.2d 6 (Ala.Cr.App.1992), cert. denied,
511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994). Next Payne
contends that his appellate counsel was ineffective for failing to
raise a claim that his trial counsel was ineffective in presenting
mitigation evidence during the sentencing phase of his trial. “In
reviewing this claim, we are guided by the following principles. In
Daniels v. State, 650 So.2d 544, 568-70 (Ala.Cr.App.1994), cert.
denied, 514 U.S. 1024, 115 S.Ct. 1375, 131 L.Ed.2d 230 (1995), we
stated the following regarding a claim that trial counsel had been
ineffective during the penalty phase of a capital murder trial: “ ‘In
determining whether Haas was ineffective at original sentencing, ...
we recognize that the “ ‘ “two-pronged Strickland analysis applies
whether the ineffectiveness complained of occurred in the defendant's
trial or in a subsequent adversarial sentencing proceeding. However,
in a challenge to the imposition of a death sentence, the prejudice
prong of the Strickland inquiry focuses on whether ‘the sentencer ...
would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.’ ”

“ ‘ “[w]hile ‘[i]t should be beyond cavil that an
attorney who fails altogether to make any preparations for the penalty
phase of a capital murder trial deprives his client of reasonably
effective assistance of counsel by any objective standard of
reasonableness,’ see Blake v. Kemp, 758 F.2d 523, 533 (11th Cir.1985),
it is unclear how detailed an investigation is necessary to provide a
defendant with the effective assistance of counsel. Strickland only
requires that counsel's actions fall within the wide spectrum of what
can be considered reasonable assistance of counsel.”

“ ‘ “An attorney has a duty to conduct a reasonable
investigation, including an investigation of the defendant's
background, for possible mitigating evidence. Thompson v. Wainwright,
787 F.2d 1447, 1451 (11th Cir.1986). First, it must be determined
whether a reasonable investigation should have uncovered such
mitigating evidence. If so, then a determination must be made whether
the failure to put this evidence before the jury was a tactical choice
by trial counsel. If so, such a choice must be given a strong
presumption of correctness, and the inquiry is generally at an end.
Funchess v. Wainwright, 772 F.2d 683, 689-90 (11th Cir.1985). If,
however, the failure to present the mitigating evidence was an
oversight, and not a tactical decision, then a harmlessness review
must be made to determine if there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different. Thus, it must be determined that defendant
suffered actual prejudice due to the ineffectiveness of his trial
counsel before relief will be granted.” “ ‘ Middleton v. Dugger, 849
F.2d 491, 493 (11th Cir.1988).

“ ‘Applying the foregoing principles to the issue
of whether Haas provided effective assistance of counsel at original
sentencing, we conclude that the appellant's claim is without merit.
Although the defense called only one witness at the sentencing hearing,
that witness was Mrs. Hebert, the appellant's mother, who pleaded for
the appellant's life. Mrs. Hebert had retained Haas, conferred with
him at length, paid all his trial fees, and, by the time of sentencing,
had exhausted her funds. The circuit court's sentencing order stated
that “it is apparent to the court that [Mrs. Hebert] was devoted to [the
appellant].”

“ ‘Since Haas had spoken with Mrs. Hebert about the
appellant and had observed by her words and actions that she appeared
to be “devoted” to the appellant, we cannot fault Haas for failing to
discover the appellant's “traumatic” childhood, in which, according to
later testimony by Dr. Herlihy, Mrs. Hebert's “emotional rejection” of
her son played a large part. Compare Bertolotti v. Dugger, 883 F.2d
1503, 1520 (11th Cir.1989) (defense counsel held to have provided
effective assistance on claim that counsel overlooked or failed to
investigate evidence of defendant's traumatic childhood, where counsel
interviewed defendant's parents), cert. denied, 497 U.S. 1032, 110
S.Ct. 3296, 111 L.Ed.2d 804 (1990). See also Beets v. Collins, 986
F.2d 1478, 1488-89 (5th Cir.1993) (although counsel did not “conduct a
thorough investigation of [the defendant's] medical, mental, and
psychological history,” which would have revealed that the defendant
“was raised in abject poverty, experienced a debilitating hearing loss,
was afflicted with learning disabilities, had received head injuries
as a child, and suffers from battered woman syndrome,” the court
observed that the defendant never gave her attorney “any hint that she
had been abused by previous husbands or boyfriends. Neither [the
defendant] nor any other member of her family ever conveyed to [the
attorney] any information giving him reason to believe that she had a
history of being physically abused.”), rehearing granted, 998 F.2d 253
(5th Cir.1993); Cantu v. Collins, 967 F.2d 1006, 1016 (5th Cir.1992) (despite
fact that counsel failed to present evidence of defendant's “low IQ,
emotional immaturity, troubled youth, trauma as a result of his
parents' divorce, and appearance of neglect,” court found that counsel
had “thoroughly investigated these claims, consulting with his client
as well as [client's] father and brother for possible mitigating
evidence,” and the claims were not supported in fact), cert. denied,
[509] U.S. [926], 113 S.Ct. 3045, 125 L.Ed.2d 730 (1993); Wilkerson v.
Collins, 950 F.2d 1054, 1064-65 (5th Cir.1992) (although attorney
failed to discover or develop mitigating evidence that defendant had a
“deprived family background,” and psychological and mental “limitations,”
the court observed that “trial counsel interviewed [the defendant],
his mother, and other relatives. Neither [the defendant] nor his
relatives were able to supply the names of potential defense witnesses.
Investigation did not reveal reason to suspect that [the defendant's]
mental capacity was in any fashion impaired.”), cert. denied, [509]
U.S. [921], 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993); Thompson v. State,
581 So.2d 1216, 1238 (Ala.Cr.App.1991) (upholding circuit court's
finding that counsel, who presented only the testimony of defendant's
mother at sentencing, was not ineffective for failing to present
evidence of the defendant's violent family background, addiction and
substance abuse), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d
774 (1992).

“ ‘We hold that Haas was not ineffective at the
original sentencing proceeding.’ “650 So.2d at 568-70 (emphasis
omitted).

“ ‘We cannot say that counsel's performance is
deficient because he failed to call more witnesses at the sentencing
phase. “The decision not to call a particular witness is usually a
tactical decision not constituting ineffective assistance of counsel.”
Oliver v. State, 435 So.2d 207, 208 (Ala.Cr.App.1983). At the hearing
on the Rule 32 petition, the appellant's mother, two of his aunts, an
uncle, and several old friends offered character testimony. Most of
these witness did not have contact with the appellant near the time of
the murder. There has never been a case where additional witnesses
could not have been called. The appellant presented relatives and
personal friends who, upon interview, were found to testify on his
behalf. We refuse to set a standard that a court may be reversed
because it did not hear unoffered testimony from still more friends
and relatives. We also refuse to say that a member of the bar is
guilty of ineffectiveness for not calling every witness and friend who
was willing to testify. To hold otherwise would clog an already
overburdened system with repetitious testimony. The appellant has
failed to satisfy either prong of the Strickland test.’ “ State v.
Tarver, 629 So.2d 14, 21 (Ala.Cr.App.1993).

“ ‘With regard to McKinnon's representation of
Morrison at the punishment-fixing and sentencing phases of his trial,
we find that the observations of the court in Clark v. Dugger, 834
F.2d 1561, 1568 (11th Cir.1987), are appropriate:

“ ‘ “In summary, we are not persuaded by
petitioner's argument that ... [defense counsel] rendered him
ineffective assistance of counsel. Petitioner's examples of
professional dereliction dissolve away under close scrutiny, leaving
at best a handful of colorable claims. A defense attorney is not
ineffective solely because his client is sentenced to death.
‘Intrusive post-trial inquiry into attorney performance,’ such as that
which has been required in this case, may ‘dampen the ardor and impair
the independence of defense counsel, discourage the acceptance of
assigned cases, and undermine the trust between attorney and client.’
Strickland v. Washington, [466] U.S. at [690], 104 S.Ct. at 2066.
Counsel's performance, here, ensured a fundamentally ‘fair trial’
which ‘produced a just result.’ Id. at [686], 104 S.Ct. at 2064. There
is no reason to set aside petitioner's conviction or his penalty on
account of the representation he received.” ' “ Bell v. State, 518
So.2d 840, 847 (Ala.Cr.App.1987), cert. denied, 486 U.S. 1036, 108
S.Ct. 2024, 100 L.Ed.2d 611 (1988).” Pierce v. State, [Ms. CR-96-1668,
March 2, 1999] --- So.2d ----, ---- (Ala.Cr.App.1999).

With the foregoing principles in mind, we conclude
that the circuit court adequately assessed and rejected the evidence
presented to support Payne's contention that his trial court's failure
to investigate and to present adequate mitigation evidence during the
sentencing phase of his trial and we adopt the following portion of
the order: “3. More than a year before the trial, the attorneys for
petitioner requested extra-ordinary expenses for an investigator to
assist them in the preparation of the case. The request was made by
motion filed by trial counsel which states: “ ‘Counsel is required to
obtain information relative to Mr. Payne's medical history,
educational history, employment, training history, family and social
history, religious and cultural influences. Counsel must direct an
investigator to obtain records from all doctors, hospitals, schools,
employers, interview people with knowledge of the aspects of Mr.
Payne's background.’ “This motion was granted by Judge Riley. Johnny
NeSmith, a retired agent of the Alabama Bureau of Investigation was
hired to assist petitioner in his trial. NeSmith contacted witnesses
from as far away as Mobile and actually testified at petitioner's
trial. Mr. NeSmith spent in excess of 50 hours investigating witnesses
and leads in the case. “.... “6. Trial counsel adequately gathered
information from petitioner's family prior to trial. This is readily
apparent from the amount of background material on the petitioner's
life which was presented to the jury. Petitioner's sister and mother
actually testified on behalf of the petitioner at trial. A claim of
petitioner is that trial counsel failed to establish a ‘rapport’ with
the petitioner's family members, and that this failure led to the
family failing to give full assistance to the defense and further
resulted in mother and sister testifying in an ineffective manner. The
argument appears to assume that the attorneys had some sort of duty to
rehearse or ‘coach’ the witnesses before trial. It can only be
speculated that had such rehearsing and coaching occurred and the
outcome of the trial remained the same, then the petitioner would
allege such inducement by the attorneys as ineffectiveness because (it
would be alleged) everyone knows that spontaneous and unrehearsed
testimony is far more emotional and effective than rehearsed or
coached testimony. As to the lack of ‘rapport’ affecting the trial
defense, petitioner's attorney handling the Rule 32 petition
questioned trial counsel about a remark made by the District Attorney
in closing arguments referring to the zealous defense of Payne by his
family. The District Attorney's characterization of this defense as a
‘conspiracy’ among the family to protect Payne certainly belies the
allegation that there was no cooperation between the family and
petitioner's defense. “It is apparent to this Court that arguments of
Rule 32 counsel concerning the relationship between trial counsel and
the petitioner's [family] is hindsight based upon the results of the
trial. This may be fueled by the family's natural desire to come to
the aid of the petitioner. From the testimony at trial and from the
Court's own observation of the petitioner's family and trial counsel
during trial, the Court finds there was no deficiency on the part of
trial counsel. “.... “8. This Rule 32 hearing was far more remarkable
for what evidence was not brought out than what evidence was produced.
The appellate counsel, whose performance is alleged to have been
ineffective, was not called as a witness. The other trial counsel,
Robert Sapp, was not called as a witness even though Mr. Nicholas
stated it was Sapp who handled the mental/psychological part of the
pretrial motions while Nicholas handled the change of venue motion.
Nicholas was called by the petitioner to testify as to what actions
were taken by trial counsel, even though Nicholas testified that he
has since lost his trial file due to changes of residences and law
offices since the trial. No attempt was made to ascertain or
demonstrate any deficiencies in counsel performance by Sapp. Payne
himself, although present in Court did not testify as to his
relationship and preparations with his trial counsel, nor as to any
deficiencies in his counsel's performance. “9. Much of the focus of
petitioner's Rule 32 counsel was criticism of trial counsel
performance in eliciting mitigating evidence at trial. Rule 32
counsel's complaint deals not so much with the fact that certain
evidence was not brought out, but that it was not presented in
precisely the same manner, or in the same detail as Rule 32 counsel
would have liked. This criticism by Rule 32 counsel extends even to
the fact that trial counsel did not ask exactly the same questions
which Rule 32 counsel now says should have been asked (R. 168.) Rule
32 counsel further criticizes trial counsel for not asking the same
witnesses the same questions in the penalty phases as was asked in the
guilt phase. This, Rule 32 counsel asserts ‘failed to highlight’ (R.
187.) certain information already heard and considered by the jury.
Rule 32 counsel at one point in the evidentiary hearing claims
ineffective assistance of appellate counsel for failing to reinterview
every defense witness at trial in order to determine whether their
trial testimony was insufficiently ‘vivid’ or ‘compelling’ as a result
[of] the defense counsel's failure to establish the proper degree of
‘rapport’ which Rule 32 counsel feels necessary. “The decisions as to
whether or not to present evidence of mental impairment, alcohol abuse
by the defendant, prior history of family disfunction, evidence of the
offense being committed by another and non-family testimony as
mitigation, were all trial strategy decisions based upon the
investigations of the attorneys and the investigator, discussions and
conferences with the family members and the evidence which counsel
knew that the prosecution possessed.” (C.R. on remand 191-96.)

The evidence presented by Payne at the evidentiary
hearing was merely an attempt to establish an ineffective-assistance-of-trial-counsel
claim by calling the same defense witnesses presented at trial and
arguing that Payne's counsel should have elicited more elaborate
testimony from these witnesses. The evidence at the hearing indicated
that Payne's trial counsel established a good relationship with
Payne's family members. Merely because trial counsel did not present
the evidence as Payne now believes he should have presented does not
establish that trial counsel was ineffective. To so conclude would
require us to engage in hindsight and speculation, which we will not
do.

Additionally, Payne argues that trial counsel
should have presented evidence of his conformity to confinement while
he awaited trial. We note, however, that the jail records produced at
the hearing do not support such a finding. While incarcerated awaiting
his trial, Payne violated jail policies and rules. Because the
evidence did not support a finding that Payne's behavior while he was
incarcerated provided mitigation evidence and trial counsel decided
not to present the evidence for that very reason, Payne has failed to
establish that his trial counsel was ineffective.

Furthermore, we reject Payne's argument that trial
counsel presented insufficient mitigation evidence of his history of
alcohol abuse and drug abuse and his alleged intoxication at the time
of the offense, of physical and sexual abuse within his family, and of
his mental and emotional disabilities. Numerous witnesses testified
during the guilt phase about Payne's consumption of alcohol on the day
of the offense and about the various forms of physical abuse that
Payne suffered and witnessed. Additionally, evidence was presented
from Payne's physicians concerning his mental and emotional faculties
and the effects of drug and alcohol consumption of his faculties. That
evidence was also placed before the jury during the penalty phase. In
light of the evidence presented during the guilt phase and the penalty
phase of the trial, we conclude that Payne's trial counsel was not
ineffective for not presenting additional evidence. Thus, appellate
counsel was not ineffective for not raising such a claim.

V.

In conducting our review on return to remand, we
note that we inadvertently failed to address Payne's claims that he
was denied due process and a right to effective assistance of counsel
by the state's “withholding of probative evidence from the
psychiatrist ordered to evaluate the accused” and “when the sentencing
court rested its decision in part on erroneous, and/or inaccurate,
incomplete information in the PSI (presentence investigation report)
which the petitioner had no meaningful opportunity to explain or deny.”
(C.R.351, 354.) These claims are procedurally barred by Rule
32.2(a)(3) and (5), Ala.R.Crim.P., because they could have been, but
were not, raised and addressed at trial or on appeal.

For the foregoing reasons, the circuit court did
not abuse its discretion in denying Payne's postconviction petition.
AFFIRMED.